[Federal Register Volume 88, Number 232 (Tuesday, December 5, 2023)]
[Proposed Rules]
[Pages 84252-84278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26579]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2023-0095; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF06


Endangered and Threatened Wildlife and Plants: Threatened Status 
With Section 4(d) Rule for the Northern and Southern Distinct 
Population Segments of the Western Spadefoot

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the northern distinct population segment (DPS) of the western 
spadefoot (Spea hammondii), an amphibian occurring in central and 
northern California, and the southern DPS of the western spadefoot, 
occurring in southern California and northwestern Mexico, as threatened 
DPSs under the Endangered Species Act of 1973 (Act), as amended. This 
determination serves as our 12-month finding on a petition to list the 
western spadefoot range-wide. After a review of the best scientific and 
commercial information available, we find that listing the northern and 
southern DPSs of the western spadefoot as threatened is warranted. 
Accordingly, we propose to list the northern and southern DPSs of the 
western spadefoot as threatened DPSs with a rule issued under section 
4(d) of the Act (``4(d) rule''). If we finalize this rule as proposed, 
it would add the northern DPS and southern DPS of the western spadefoot 
to the List of Endangered and Threatened Wildlife and extend the Act's 
protections to the two DPSs. Due to the current lack of data sufficient 
to perform required analyses, we conclude that the designation of 
critical habitat for the northern DPS and southern DPS of the western 
spadefoot is not determinable at this time.

DATES: We will accept comments received or postmarked on or before 
February 5, 2024. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by January 19, 2024.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. enter FWS-R8-ES-2023-0095, which is the docket 
number for this rulemaking. Then, click on the Search button. On the 
resulting page, in the panel on the left side of the screen, under the 
Document Type heading, check the Proposed Rule box to locate this 
document. You may submit a comment by clicking on ``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R8-ES-2023-0095, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R8-ES-2023-0095.

FOR FURTHER INFORMATION CONTACT: Michael Fris, Field Supervisor, U.S. 
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 
Cottage Way, Sacramento, CA 95825; telephone 916-414-6700. Individuals 
in the United States who are deaf, deafblind, hard of hearing, or have 
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States. 
Please see Docket No. FWS-R8-ES-2023-0095 on https://www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. The Act defines a ``species'' as any

[[Page 84253]]

subspecies of fish or wildlife or plants, and any distinct population 
segment (DPS) of any species of vertebrate fish or wildlife which 
interbreeds when mature. Any reference to the term ``species'' in this 
document pertains to either the northern or southern DPS, unless 
otherwise noted. Under the Act, a DPS warrants listing if it meets the 
definition of an endangered species (in danger of extinction throughout 
all or a significant portion of its range) or a threatened species 
(likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range). If we determine 
that a DPS warrants listing, we must list the DPS promptly and 
designate the DPS's critical habitat to the maximum extent prudent and 
determinable. We have determined that the western spadefoot occurring 
in the Central Valley and foothill regions in the Sierra Nevada 
Mountains and along the northern Coast Ranges to Santa Barbara County 
in California, and the western spadefoot in southern California from 
Los Angeles County and Transverse Range south to northwestern Baja 
California, Mexico are valid DPSs as described in our 1996 policy (61 
FR 4722) and meet the definition of threatened species; therefore, we 
are proposing to list them as such. Listing a species as an endangered 
or threatened species can be completed only by issuing a rule through 
the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et 
seq.).
    What this document does. We have determined that the western 
spadefoot is comprised of two DPSs, the northern DPS and the southern 
DPS. We are proposing to list the northern DPS and southern DPS of the 
western spadefoot as threatened species with a rule under section 4(d) 
of the Act (a ``4(d) rule'') for both species.
    The basis for our action. Under the Act, we may determine that a 
DPS is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the northern DPS and 
southern DPS of the western spadefoot are threatened due to the 
following threats: habitat loss, fragmentation, and degradation largely 
attributable to development, urbanization, and agricultural land 
conversion (factor A); chemical contaminants (factor E); nonnative 
predators (factor C); wildfire (factor A); noise disturbance (factor 
E); and the effects associated with climate change (most notably 
drought) (factor E). Of these threats, we identified habitat loss and 
degradation from land conversion (factor A) and the effects of climate 
change (factor E) mostly associated with severe drought as the major 
influences driving the current condition of the northern DPS and 
southern DPS of the western spadefoot.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary), to the maximum extent prudent and determinable, to 
designate critical habitat concurrent with listing. We have not yet 
been able to obtain the necessary economic information needed to 
develop proposed critical habitat designations for the two DPSs, 
although we are in the process of obtaining this information. At this 
time, we find that designation of critical habitat for the northern DPS 
and southern DPS of the western spadefoot is not determinable.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. We particularly seek 
comments concerning:
    (1) The two DPS's biology, range, and population trends, including:
    (a) Biological or ecological requirements of the two DPSs, 
including habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns 
and the locations of any additional populations of these two DPSs;
    (d) Historical and current population levels, and current and 
projected trends;
    (e) Past and ongoing conservation measures for these two DPSs, 
their habitat, or both; and
    (f) Tribal use or cultural significance of the two species, 
including traditional ecological knowledge (TEK) on the two DPSs.
    (2) Threats and conservation actions affecting the two DPSs, 
including:
    (a) Factors that may be affecting the continued existence of the 
two DPSs, which may include habitat modification or destruction, 
overutilization, disease, predation, the inadequacy of existing 
regulatory mechanisms, or other natural or manmade factors.
    (b) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to these two DPSs.
    (c) Existing regulations or conservation actions that may be 
addressing threats to these two DPSs.
    (3) Additional information concerning the historical and current 
status of these two DPSs.
    (4) Information on regulations that may be necessary and advisable 
to provide for the conservation of the northern DPS and southern DPS of 
the western spadefoot and that we can consider in developing a 4(d) 
rule for these two DPSs. In particular, we seek information concerning 
the extent to which we should include any of the section 9 prohibitions 
in the 4(d) rule or whether we should consider any additional 
exceptions from the prohibitions in the 4(d) rule.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act directs that determinations as to whether any species is an 
endangered or a threatened species must be made solely on the basis of 
the best scientific and commercial data available, and section 4(b)(2) 
of the Act directs that the Secretary shall designate critical habitat 
on the basis of the best scientific data available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule,

[[Page 84254]]

will be available for public inspection on https://www.regulations.gov.
    Our final determination may differ from this proposal because we 
will consider all comments that we receive during the comment period as 
well as any information that may become available after this proposal. 
Based on the new information we receive (and, if relevant, any comments 
on that new information), we may conclude that either DPS is endangered 
instead of threatened, or we may conclude that either DPS does not 
warrant listing as an endangered species or a threatened species. In 
addition, we may change the parameters of the prohibitions or the 
exceptions to those prohibitions in the proposed 4(d) rule if we 
conclude it is appropriate to do so in light of comments and new 
information received. For example, we may expand the prohibitions to 
include prohibiting additional activities if we conclude that those 
additional activities are not compatible with conservation of either 
DPS. Conversely, we may establish additional exceptions to the 
prohibitions in the final rule if we conclude that the activities would 
facilitate or are compatible with the conservation and recovery of 
either DPS. In our final rule, we will clearly explain our rationale 
and the basis for our final decision, including why we made changes, if 
any, that differ from this proposal.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on our website, in 
addition to the Federal Register. The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    In 2005, although the western spadefoot was not listed as an 
endangered or threatened species under the Act, we included the species 
within our final Recovery Plan for Vernal Pool Ecosystems of California 
and Southern Oregon (Service 2005, entire). The recovery plan outlines 
conservation and management actions to be taken to help conserve vernal 
pool, swale, and ephemeral habitats, which include the habitat of the 
western spadefoot. On July 11, 2012, we received a petition from the 
Center for Biological Diversity (CBD) to list the western spadefoot 
(CBD 2012, pp. 1-86 and 197-203). On July 1, 2015, we published our 90-
day finding in the Federal Register that found the petition to list the 
western spadefoot presented substantial information to indicate that 
listing may be warranted (80 FR 37568). We then added the western 
spadefoot to our national workplan to complete our 12-month finding for 
the species. This document serves as our 12-month finding and proposed 
listing rule for the species.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the western spadefoot (Service 2023, entire). The SSA team was composed 
of Service biologists, in consultation with other species experts. The 
SSA report represents a compilation of the best scientific and 
commercial data available concerning the status of the species, 
including the impacts of past, present, and future factors (both 
negative and beneficial) affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the western spadefoot SSA 
report. We sent the draft SSA report (Service 2020a, entire) to six 
independent peer reviewers and received two responses. Both peer 
reviewers noted significant concerns with our analysis, including how 
we characterized suitable terrestrial habitat, how we described habitat 
loss now and in the future, how we used or did not use data, and how we 
provided conclusions that were not justified. Because of this response, 
we held a meeting on July 8 and 9, 2020, with known species experts to 
receive information and guidance on ways to appropriately analyze the 
species throughout both the northern and southern clades. The western 
spadefoot is composed of two genetically distinct, allopatric clades 
that show no evidence of interbreeding, separated by the Transverse 
Mountain Range in California. In our SSA report, we refer to them as 
the northern western spadefoot clade, and the southern western 
spadefoot clade and assess their status separately.
    The July 2020 expert meeting resulted in revisions to the condition 
category tables we used in the SSA report to assess the species' status 
and, therefore, also resulted in changing the results of our analysis. 
After revising the SSA report, we solicited another independent 
scientific review of the analysis. We sent the updated SSA report 
(Service 2020b, entire) to the same two peer reviewers who responded 
during the previous peer review and received responses from both. 
Results of this structured peer review process can be found at https://regulations.gov. In preparing this proposed rule, we incorporated the 
results of these reviews, as appropriate, into the current SSA report 
(Service 2023, entire), which is the foundation for this proposed rule.

Summary of Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from two 
peer reviewers on the updated SSA report. We reviewed all comments we 
received from the peer reviewers for substantive issues and new 
information regarding the contents of the SSA report. The peer 
reviewers generally provided additional references, clarifications, and 
wording suggestions. We revised the updated SSA report based on the 
peer reviewers' comments, including changing our condition categories 
for the current and future analyses, clarifying specific points where 
appropriate, and adding details and suggested references where needed. 
Peer reviewer comments are addressed in the following summary and were 
incorporated into the current SSA report (Service 2023, entire) as 
appropriate.
    Comment 1: One peer reviewer stated that our assertion that there 
are no differences in habitat characteristics between the northern and 
southern clades of the western spadefoot was not accurate, as indicated 
by habitat models (Neal et al. 2018, entire) that showed southern 
locality characteristics cannot predict the northern range and vice 
versa.
    Our response: We acknowledge that habitat characteristics in the 
northern and southern range are different and clarified our discussion 
of habitat for both DPSs as indicated by habitat modeling (Neal et al. 
2018, entire) as appropriate in the current SSA report and included 
additional references that found western spadefoot occurrences in the 
northern clade are associated with grassland habitat whereas 
occurrences in the southern clade are associated with grassland and 
shrub/scrub habitat (Rose et al. 2020, p. 6; Rose et al. 2022, p. 2). 
The current version of the SSA

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report reflects these differences (Service 2023, pp. 10-11).
    Comment 2: One peer reviewer felt our characterization and use of 
precipitation data, which were used to determine current condition, 
were not adequate. They stated that our approach was too narrow, using 
only the most recent 6 years of average rainfall data, and that we 
should conduct a more thorough analysis using the last 100 years to 
fully capture the variance in precipitation across the range of both 
clades and therefore provide a more accurate current condition.
    Our response: The approach we took looking at the most recent 6 
years of data was similar to an analysis completed by other researchers 
(Fisher et al. 2018, pp. 6124-6132), which looked at recent drought 
implications on the longevity and age structure of the arroyo toad 
(Anaxyrus californicus), a federally endangered species that occurs in 
portions of the western spadefoot's range. Using the more recent data 
allowed us to gain insight into the magnitude, extent, and frequency of 
the current threats facing the species. In addition, although 
additional precipitation data are available, they are not available 
rangewide. As a result, we determined that the past 6 years of 
precipitation data constitute the best scientific information available 
for our analysis.
    Comment 3: The peer reviewers questioned the assumption in the SSA 
report that occurrence information from the California Natural 
Diversity Database (CNDDB) can be used as proxies for breeding ponds. 
They stated that many of these occurrences are likely incidental 
records of adults near or crossing roads and are not indicative of a 
breeding pond. They also questioned assumptions made for the abundance 
analysis, including whether multiple overlapping records indicate one 
breeding pond or multiple breeding ponds, the timeframe for the 
occurrence data used, and how varying sampling efforts among 
populations may influence abundance estimates in the SSA report.
    Our response: We recognize that there are limitations with the 
occurrence data we used; however, because no rangewide surveys or 
assessments have occurred of ponded habitat used by western spadefoots 
and the species uses ephemeral aquatic habitat for breeding (including 
habitat not characterized as ponds), we determined that the CNDDB data 
constitutes the best scientific information available for the rangewide 
status assessment on habitat use and abundance estimates. In the 
revised updated SSA report, we included additional detail on how the 
occurrence data were used for the abundance assessment and clarified 
our methods, such as providing additional detail on our method for 
assessing abundance and estimating the effective number of breeders 
within local populations.
    Comment 4: One peer reviewer stated our approach to estimating the 
effective number of breeders within a local population likely inflates 
the estimates.
    Our response: We acknowledge that our estimate of the effective 
number of breeders within a local population is likely an 
overestimation. The overestimation stems from our use and extrapolation 
of a single study (Neal 2019, entire), which was not rangewide or over 
an extended timeframe. Implementing additional surveys over a longer 
period would most likely give a more accurate number of effective 
breeders at occupied locations for the species. To assist in 
determining if our estimates were consistent and provided meaningful 
information, we compared our estimates to another amphibian species 
(black toad (Bufo exsul)) that uses similar habitats and found that our 
estimates for the two clades (although not exact) are similarly low and 
our breeding number estimates are consistent with the other species 
(Wang 2009, pp. 3852-3853). Lastly, our use and estimate of the 
effective number of breeders is only one component of determining the 
species' current and future resiliency in which we also considered 
habitat quantity, distribution, and quality as well as various 
precipitation variables. As a result, we have determined that our 
estimates are based on the best scientific information available and 
are appropriate to use in this assessment.
    Comment 5: One peer reviewer was concerned about the current 
condition analysis for regions that have no data on the estimated 
effective number of breeders. They suggested using the average of the 
estimated effective number of breeders from surrounding regions or 
using the estimated effective number of breeders from the nearest 
region.
    Our response: We updated our analysis to include an abundance 
category for those regions lacking data and used the estimated 
effective number of breeders from the nearest region to complete our 
analysis.

I. Proposed Listing Determination

Background

    Below, we briefly describe information about the western spadefoot 
and its habitat and range. A thorough description and other information 
including life history and ecology of the western spadefoot is 
presented in the SSA report (Service 2023, pp. 4-22).
Species and Habitat Information
    The western spadefoot is a small amphibian often referred to as a 
toad but is typical in shape to most fossorial (burrowing) frogs. 
Individuals of the species vary in size from 1.5 to 2.5 inches (in) 
(3.8 to 6.3 centimeters (cm)) in length. Western spadefoots have a 
wedge-shaped, glossy black hardened ``spade'' on each hind foot that is 
used for digging burrows in the ground to avoid desiccation during the 
dry season, from late spring to early fall, or for sheltering during 
the active season (early fall to late spring).
    The western spadefoot is primarily terrestrial and uses nearby 
aquatic habitat only for breeding and rearing (Dimmitt and Ruibal 1980, 
p. 21). The species requires a variety of both terrestrial and aquatic 
habitat components in close proximity and accessible to each other in 
order to meet all of their life history requirements (Halstead et al. 
2021, 1377-1393). The terrestrial (upland) habitat is primarily open 
grasslands, scrub, or mixed woodland and grassland on flat or gently 
rolling topography and provides areas for sheltering and foraging 
(Stebbins and McGinnis 2012, p. 157). The aquatic habitat required for 
breeding, egg laying, and tadpole and juvenile development is most 
often associated with vernal pool or other ephemeral wetland areas. 
Vernal pools are seasonal shallow ephemeral aquatic features that pond 
in depressions that are underlain by a subsurface that limits drainage 
(Keeler-Wolf et al. 1998, p. 8). Vernal pools require the appropriate 
amount and timing of precipitation to fill each year. Some years with 
intermittent rainfall or during periods of drought, vernal pools may 
not provide habitat sufficient for successful breeding and rearing of 
the species. However, the species is highly adaptable and uses many 
other types of ponded water features for breeding and rearing including 
any water feature such as ponded features within intermittent streams, 
artificially created pools or ponds (i.e., mitigation pools and 
livestock or agricultural ponds), drainage ditches, roadside pools or 
ruts, and other locations where water pools or ponds after rain events 
and provides sufficient time for reproduction and metamorphosis (Morey 
1998, pp. 86-90; Morey 2005, p. 515; Service 2023, p. 13).
    Western spadefoots are uniquely adapted to dry conditions and have 
several behavioral and physiological

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adaptations to facilitate moisture retention and lessen the impacts 
associated with dry conditions (Service 2005, pp. II-228-II-229). One 
of these adaptations is its construction of burrows to allow for its 
long underground dry-season dormancy (Ruibal et al. 1969, pp. 573-577; 
Morey 2005, p. 516). To prevent water loss in the burrows, western 
spadefoots secrete a semipermeable membrane that thickens their skins 
making them highly resistant to dehydration and they are able to lose 
over half of their body weight due to evaporation (Duellman and Trueb 
1994, pp. 197-203). While in their burrows western spadefoots are also 
able to absorb moisture from the soil by maintaining higher osmotic 
body fluid pressure that exceeds that of the soil moisture tension 
(Ruibal et al. 1969, pp. 578-581; Shoemaker et al. 1969, pp. 585-590).

Range and Distribution

    The historical range of western spadefoot as a whole is from the 
vicinity of Redding in Shasta County, California, southward to 
northwestern Baja California, Mexico (Stebbins and McGinnis 2012, p. 
157). In California, the western spadefoot is found throughout portions 
of the foothills of the Sierra Nevada Mountains up to 4,500 ft (1,385 
m), the Central Valley, and in the Coast Range from Santa Clara and 
Santa Cruz Counties to San Diego County (Service 2023, figure 2, p. 7). 
In Mexico, western spadefoots are known to occur from the U.S. 
international border south to approximately El Rosario near Mesa de San 
Carlos in Baja California, Mexico (Grismer 2002, pp. 84-85; Amphibian 
and Reptile Atlas 2023, entire).
    Currently, the species is patchily distributed throughout its 
historical range (Service 2023, p. 7). A species distribution model for 
the northern portion of the western spadefoot's range (north of Santa 
Barbara, California) found the areas predicted to have suitable habitat 
are patchily distributed north in the Coast Range, along the foothills 
surrounding both sides of the Central Valley, and in remnant habitat 
within the Central Valley (Rose et al. 2020, entire; Service 2023, pp. 
33-34). The species in southern California, based on survey efforts 
from researchers and regional HCP monitoring and survey efforts on 
Department of Defense (DOD) facilities, is also patchily distributed 
with occupied areas associated with the large, urbanized areas of Los 
Angeles and San Diego being mostly extirpated. The species in Baja 
California, Mexico is distributed in small populations dispersed 
throughout its historical range in Mexico.
Taxonomy
    The western spadefoot (Spea hammondii) was first described and 
named by Spencer F. Baird in 1859, from a specimen collected by Dr. 
J.F. Hammond near Redding, California (Baird 1859, p. 12). Until the 
late 1960s, the species was regarded as having a broad geographic range 
from California to western Texas and Oklahoma with a distributional gap 
in the Mojave Desert of California (Storer 1925, p. 148). In the late 
1960s, researchers identified morphological, vocalization, and 
reproductive differences between eastern (Arizona eastward) and western 
(California and Baja California) populations, justifying species 
recognition for each entity (Brown 1967, p. 759). The study identified 
populations west of the Sierra Nevada Mountains and southward into 
Baja, Mexico, as retaining the name Spea hammondii (with a common name 
of western spadefoot), while the remainder of the populations were 
designated as S. multiplicata (Mexican spadefoot) or S. intermontana 
(Great Basin spadefoot).
Genetic Information
    Genetic analysis of nuclear and mitochondrial DNA data from 
populations throughout the range of the western spadefoot identified 
two genetically distinct, allopatric (separate) clades that show no 
evidence of interbreeding, and researchers agree the two clades make up 
two separate entities (Neal et al. 2018, pp. 937-938; Neal 2019, p. 
114).

Distinct Population Segment Evaluation

    Under the Act, the term species includes any subspecies of fish or 
wildlife or plants, and any distinct population segment of any species 
of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 
1532(16)). To guide the implementation of the distinct population 
segment (DPS) provisions of the Act, we, and the National Marine 
Fisheries Service (National Oceanic and Atmospheric Administration--
Fisheries), published the Policy Regarding the Recognition of Distinct 
Vertebrate Population Segments Under the Endangered Species Act (DPS 
Policy) in the Federal Register on February 7, 1996 (61 FR 4722). Under 
our DPS Policy, we use two elements to assess whether a population 
segment under consideration for listing may be recognized as a DPS: (1) 
The population segment's discreteness from the remainder of the species 
to which it belongs, and (2) the significance of the population segment 
to the species to which it belongs. If we determine that a population 
segment being considered for listing is a DPS, then the population 
segment's conservation status is evaluated based on the five listing 
factors established by the Act to determine if listing it as either 
endangered or threatened is warranted.
    Under the Act, we have the authority to consider for listing any 
species, subspecies, or, for vertebrates, any DPS of these taxa if 
there is sufficient information to indicate that such action may be 
warranted. Based on the information available regarding potential 
discreteness and significance for the western spadefoot, we have 
determined it is appropriate to review the status of the species by 
first conducting a DPS analysis.
Discreteness
    Under our DPS Policy, a population segment of a vertebrate taxon 
may be considered discrete if it satisfies either of the following 
conditions: (1) it is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors (Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation); or (2) it is 
delimited by international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.
    For the western spadefoot, we examined recent genetic information, 
the distribution of the species' populations, and a review of any 
potential barriers for dispersal as our means of determining 
discreteness for potential DPSs.
    As discussed briefly above and in the SSA report (Service 2023, 
section 3.2, p. 5), there is substantial genetic evidence that the 
western spadefoot is biogeographically divided into two clades (a group 
of organisms having the same ancestral lineage) with no gene flow 
between the clades. Past genetic work on mitochondrial DNA analysis 
(Garcia-Paris et al. 2003, pp. 16-20) hinted at such separation but the 
sample size was limited. However, more recent genetic research (Neal et 
al. 2018, entire; Neal 2019, entire) looking at both nuclear and 
mitochondrial DNA with a larger sample size (45 sites for the northern 
clade and 20 sites for the southern clade) representing the 
distribution of the western spadefoot in California strongly suggests 
separation of the species into two entities. The

[[Page 84257]]

results of the most recent genetic research identified that individuals 
of the southern clade of Spea hammondii share more genetic 
characteristics with S. intermontana that occur in eastern California 
than they do with members of the western spadefoot clade in the north. 
In addition, the genetic information did not identify any mitochondrial 
haplotypes of the southern clade within the northern clade of the 
western spadefoot, signifying no apparent mixture of the two clades. 
These results confirmed that the northern and southern distributions of 
the western spadefoot are two genetically distinct, allopatric clades 
that show no evidence of interbreeding and are separate (Neal et al. 
2018, p. 941; Neal 2019, pp. 107-114).
    To further evaluate whether the northern and southern clades of 
western spadefoots are separate populations based on habitat 
associations, the same researchers (Neal et al. 2018, pp. 940-944; Neal 
2019, pp. 1-30) used environmental niche modeling (ENM), that included 
numerous bioclimatic variables and slope information, to assess and 
quantify ecological differentiation that would be consistent with 
functional (physical) or physiological separation between the northern 
and southern populations. The results of the ENM further corroborated 
the genetic analysis results discussed above, with the western 
spadefoot inhabiting unique climatic niches between the northern and 
southern populations of western spadefoot indicating ecological 
differentiation. The genetic research and ENM identified the Transverse 
Range in northern Los Angeles and southern Santa Barbara counties as an 
area of unsuitable or unused habitat for the species that serves as a 
barrier to dispersal between the two populations. As a result, we have 
determined that the western spadefoot comprises two separately located 
discrete entities (northern and southern populations) that meet the 
condition of discreteness under our DPS Policy.
Significance
    Under our DPS Policy, once we have determined that a population 
segment is discrete, we consider its biological and ecological 
significance to the larger taxon to which it belongs. This 
consideration may include, but is not limited to: (1) evidence of the 
persistence of the discrete population segment in an ecological setting 
that is unusual or unique for the taxon, (2) evidence that loss of the 
population segment would result in a significant gap in the range of 
the taxon, (3) evidence that the population segment represents the only 
surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historical range, or 
(4) evidence that the discrete population segment differs markedly from 
other populations of the species in its genetic characteristics.
    We evaluated each discrete population segment to see if it meets 
the conditions of significance under our DPS Policy, and we have 
determined that the two entities are significant to the western 
spadefoot.
    The support for significance of the two DPSs is based, in part, on 
evidence that loss of either of these two population segments would 
result in a significant gap in the range of the taxon. The loss of 
either the northern or southern DPS would result in a substantial 
change in the overall range and distribution of the taxon. The loss of 
either the northern or southern DPS would shift the taxon's range by 
nearly half, resulting in a loss of range of approximately 450 miles 
(mi) (725 kilometers (km)) either north or south respectively. As a 
result, we have determined that the loss of the northern or southern 
DPS would result in a significant gap in the range of the taxon.
    The support for significance of the two DPSs is also based on 
evidence that the two DPSs differ markedly in their genetic 
characteristics, such that the loss of the northern or southern DPS 
would result in the loss of a discrete genetic clade. As discussed 
above, the two DPSs have been found to be genetically divergent and 
thus most likely contribute to the adaptive capacity of the taxon. This 
in turn may assist each DPS to adapt to both near-term and long-term 
changes in its physical and biological environment, thereby maintaining 
its representation. As a result, we have determined that the loss of 
the northern or southern DPS would be significant in that they differ 
markedly in their genetic characteristics, which satisfies the criteria 
for significance under our DPS Policy.
Distinct Population Segment Conclusion
    Our DPS Policy directs us to evaluate whether populations of a 
species are separate from each other to the degree that they qualify as 
discrete segments and whether those segments are significant to the 
remainder of the species to which they belong. Based on an analysis of 
the best available scientific and commercial data, we conclude that the 
northern and southern populations (clades) of the western spadefoot are 
discrete from each other due to their marked genetic and physical 
separation. Furthermore, we conclude that the two discrete population 
segments are significant, based on evidence that a loss of either 
population segment would result in a significant gap in the range of 
the taxon and on evidence that the discrete population segments differ 
markedly from each other in their genetic characteristics. Therefore, 
we conclude that the two populations (northern and southern) of western 
spadefoot are both discrete and significant under our DPS Policy and, 
therefore, qualify as DPSs, which are uniquely listable entities under 
the Act.
    Based on our DPS Policy, if a population segment of a vertebrate 
species is both discrete and significant relative to the taxon as a 
whole (i.e., it is a distinct population segment), its evaluation for 
endangered or threatened status will be based on the Act's definition 
of those terms and a review of the factors enumerated in section 4(a) 
of the Act. Having found that the two populations (clades) of the 
western spadefoot meet the definition of being DPSs, we then evaluate 
the status of the two populations of western spadefoot to determine 
whether either one meets the definition of an endangered or threatened 
species under the Act. The extent of the areas occupied by the two DPSs 
are within the historical range of the western spadefoot (Figure 1).
BILLING CODE 4333-15-P

[[Page 84258]]

[GRAPHIC] [TIFF OMITTED] TP05DE23.031

BILLING CODE 4333-15-C
Description of Western Spadefoot Distinct Population Segments
    Below is a general description of the occupied extent of the 
northern DPS and southern DPS of the western spadefoot.
    Northern DPS of the Western Spadefoot: The range of the northern 
DPS of the western spadefoot is entirely in California and includes the 
area of the Sacramento and San Joaquin Valleys from Shasta to Kern 
Counties including the lower elevation foothill areas of the Sierra 
Nevada Mountains and low-elevation and valley areas in the northern 
Coast Range from Tehama County south to Santa Clara County. In the 
southwest portion of the northern DPS's range, the occupied area 
extends from southern Santa Cruz County to southern Santa Barbara 
County of the Coast Range and is contiguous with the Central Valley 
portion of the DPS's range.
    Southern DPS of the Western Spadefoot: The range of the southern 
DPS of the western spadefoot includes areas in southern California and 
northwestern Baja California, Mexico. In the United States, this 
includes valleys and low-lying areas of portions of the Coast Range 
from extreme southeastern Santa Barbara County south to Ventura, Los 
Angeles, San Bernardino, Orange, Riverside, and San Diego Counties. In 
Baja California, Mexico, this includes areas in the municipalities 
(municipio) of Tijuana and Playas de Rosarito, and portions of the 
municipalities of Tecate and Ensenada.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an

[[Page 84259]]

endangered species or a threatened species, issuing protective 
regulations for threatened species, and designating critical habitat 
for endangered and threatened species. In 2019, jointly with the 
National Marine Fisheries Service, the Service issued a final rule that 
revised the regulations in 50 CFR parts 424 regarding how we add, 
remove, and reclassify endangered and threatened species and the 
criteria for designating listed species' critical habitat (84 FR 45020; 
August 27, 2019). On the same day, the Service also issued final 
regulations that, for species listed as threatened species after 
September 26, 2019, eliminated the Service's general protective 
regulations automatically applying to threatened species the 
prohibitions that section 9 of the Act applies to endangered species 
(84 FR 44753; August 27, 2019).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define the foreseeable 
future as a particular number of years. Analysis of the foreseeable 
future uses the best scientific and commercial data available and 
should consider the timeframes applicable to the relevant threats and 
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing 
the species' biological response include species-specific factors such 
as lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for listing as an endangered 
or threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies.
    To assess the viability of the northern and southern DPSs of the 
western spadefoot, we used the three conservation biology principles of 
resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 
306-310). Briefly, resiliency is the ability of a species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy is the ability of a species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation is the ability of a species to adapt over 
time to both near-term and long-term changes in its physical and 
biological environment (for example, climate conditions, pathogens). In 
general, a species' viability will increase with increases in 
resiliency, redundancy, and representation (Smith et al. 2018, p. 306). 
Using these principles, we identified the western spadefoot's 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the two DPSs' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated each DPS's life-history needs. The 
next stage involved an assessment of the historical and current 
condition of each DPS's demographics and habitat characteristics, 
including an explanation of how each DPS arrived at its current 
condition. The final stage of the SSA involved making predictions about 
each DPS's responses to positive and negative environmental and 
anthropogenic influences. Throughout all of these stages, we used the 
best available information to characterize viability as the ability of 
each DPS to sustain populations in the wild over time which we then 
used to inform our regulatory decision.

[[Page 84260]]

    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the two DPSs. To assess the current and future condition of 
each DPS, we evaluate the effects of all the relevant factors that may 
be influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative-effects analysis.
    The following is a summary of the key results and conclusions from 
the SSA report for the western spadefoot. Our review of information in 
the SSA report reflects the acknowledgement of the separation between 
the northern and southern clades of the western spadefoot and provides 
information regarding each clade's (DPS's) current and future condition 
individually. The full SSA report can be found at Docket FWS-R8-ES-
2023-0095 on https://www.regulations.gov and from the Sacramento Fish 
and Wildlife Office, see FOR FURTHER INFORMATION CONTACT.

Summary of Biological Status and Threats

    In the discussion below, we provide information on the species 
needs at the individual, population, and species level, the threats 
that are influencing the western spadefoot, and each DPS's current and 
future condition at the individual, population, and DPS level as a 
result of the threats, to assess the overall viability and the risks to 
viability for both the northern and southern DPSs of the western 
spadefoot.
    To evaluate the individual and cumulative threats that influence 
the current and future condition and viability of the two DPSs in each 
of their respective analysis regions, we evaluated the habitat factors 
of (1) habitat quantity and distribution, (2) habitat quality, and (3) 
rainfall, and the demographic factor of abundance for each DPS.
    In determining potential future threats facing the northern and 
southern DPSs of the western spadefoot, we evaluated the existing 
threats and their magnitude or impact on each DPS. We then further 
evaluated the expected response of each DPS to those threats that we 
considered are driving the overall status of the two DPSs based on 
expected changes to the habitat and demographic factors identified 
above.

Species Needs for the Western Spadefoot

    Below we discuss a summary of the information on the western 
spadefoot's individual, population, and species needs. For additional 
information on the species' needs see the SSA report (Service 2023, 
Chapter 7, pp. 12-22).
Individual Needs
    The western spadefoot requires seasonal rains, aquatic breeding 
pools, appropriate terrestrial habitat, and food resources to fulfill 
its life history. The aquatic breeding pools and terrestrial habitat 
must be within dispersal distance of each other. The aquatic habitat 
includes water features such as vernal pools, ponds, ditches or other 
ponded surface waters with the appropriate temperature and hydroperiod 
for breeding and rearing young. The water features used by the species 
typically support inundation during the late fall to early spring 
depending on when precipitation events occur and hold water for a 
minimum of 3 consecutive weeks. The appropriate water temperature for 
allowing development of eggs and tadpoles is between 9 and 30 [deg]C 
(between 48 and 86 [deg]F). In addition, the western spadefoot requires 
the presence of upland habitat adjacent and accessible to the water 
features it uses for breeding and rearing. The dispersal distance 
required between upland refugia and aquatic habitat ranges and may be 
up to approximately 600 m (1,968 ft) with a mean dispersal distance of 
40 m (131 ft) to 137 m (450 ft). The upland component is mostly 
associated with grassland or grassland/scrub vegetation on gently 
sloped landscapes with the appropriate soil makeup to allow for the 
species to create burrows and refugia during its active and inactive 
periods to avoid desiccation and provide cover. Other habitat or 
biological factors considered most significant for the western 
spadefoot include small invertebrate prey, and seasonal precipitation 
to fill aquatic habitat (November-May) (Service 2023, pp. 12-17).
Population Needs
    At the population level, we used the best available information to 
assess the resources and circumstances that most influence the 
resiliency of western spadefoot populations. The population needs that 
we evaluate for this species are abundance, reproduction, and 
dispersal.
    Because information on the exact make-up of populations for the 
western spadefoot is lacking, we looked to the western spadefoot's 
association with vernal pool habitat and the characteristics of vernal 
pools across the species' range as a proxy for determining population 
information. As a result, we divided the range of the two DPSs of 
western spadefoot into several regions based on the habitat 
characteristics of vernal pools. These regions are based partly on the 
recovery units in the Recovery Plan for Vernal Pool Ecosystems of 
California and Southern Oregon (Service 2005, pp. I-9--I-12), which 
were developed using the California Department of Fish and Wildlife's 
California Vernal Pool Assessment Preliminary Report (Keeler-Wolf et 
al. 1998, pp. 12-15). The vernal pool regions are separated largely on 
the basis of endemic species, with soils and geomorphology as secondary 
elements, but with some overlap of these features among vernal pool 
regions. The regions in the southern DPS's range were further refined 
by species experts to best capture the different habitat types where 
the western spadefoot is found across southern California and Mexico 
(Fisher pers. comm. 2020, entire). Although these regions do not 
encompass all western spadefoot occurrences, they capture the majority 
of the vernal pool habitat that is considered ideal for western 
spadefoot. In total, we identified 10 regions for the northern DPS of 
the western spadefoot and 10 regions for the southern DPS of the 
western spadefoot (six in the United States and four in Mexico) (see 
Service 2023, figure 8, p. 37).
    Population Abundance: Population abundance estimates do not exist 
for the western spadefoot throughout its range. This is partly because 
consistent rangewide population surveying has not been completed. 
Additionally, life history characteristics and dry-season dormancy 
makes it difficult to survey for the species except when breeding ponds 
are available (which may not be every year) and the species is active 
and above ground or by surveying for egg masses in aquatic habitat. 
State Natural Heritage occurrence data are available for the species in 
California along with limited survey information for Baja California, 
Mexico (McPeak 2000, p. 15; Grismer 2002, pp. 84-85; iNaturalist 2020, 
unpaginated; Amphibian and Reptile Atlas 2023, entire; CNDDB 2023, 
entire); however, the occurrence information does not uniformly provide 
numbers of individuals or absence data. Even when the information is 
provided, it is variable in content and may be too broad and lacking 
site specifics, be opportunistic (i.e., roadside records), and not 
revisited.

[[Page 84261]]

    Reproduction and Recruitment: Although reproduction and recruitment 
estimates are not available for the western spadefoot rangewide, we 
were able to obtain recent estimates on the effective number of 
breeders in a subset of the breeding pools throughout most but not all 
of the western spadefoot's range (Neal 2019, pp. 95-165). The effective 
number of breeders is not a count of individuals; rather, it is the 
number of individuals that are contributing to the population size in a 
single cohort. Therefore, the effective number of breeders is a 
measurement of the relative reproduction and recruitment effort of the 
population and gives insight into habitat and resource conditions (Wang 
et al. 2011, p. 918) within the areas surveyed, at least in the near 
term. We used information from the above mentioned study (i.e., Neal 
2019, entire) and extrapolated it to develop rangewide estimates for 
both the northern and southern DPSs of the western spadefoot. This 
extrapolated information indirectly informed the potential demographic 
condition for the two DPSs. In order to do this, we averaged occurrence 
information across each region, which most likely overestimated 
abundance for the two DPSs. This overestimation was considered in our 
proposed listing determination for the two DPSs. See the SSA report for 
additional information (Service 2023, pp. 19, 20, 34-38).
    For the northern DPS of the western spadefoot, the results of 
survey information identified the average effective number of breeders 
measured in multiple breeding pools to be near 5 individuals (5.25, 
ranging from 2.3 to 18.3) and for the southern DPS of the western 
spadefoot, the average effective number of breeders was 4 individuals 
(ranging from 1.4 to 20.7) (Neal 2019, p. 113). The required number of 
effective breeders for either DPS to reach population stability is 
unknown and information on the effective number of breeders for other 
species is lacking; however, we were able to compare the western 
spadefoot information with the black toad, another pond-breeding 
amphibian. The lowest estimation for effective number of breeders for 
the black toad ranged from 7 to 30 individuals (Wang 2009, pp. 3852-
3853). Very small effective population sizes (<50 individuals) have 
been observed in other amphibians (Funk et al. 1999, pp. 1633, 1637; 
Rowe and Beebee 2004, pp. 292-296; Wang 2009, p. 3848; Wang et al. 
2011, p. 914; Wang 2012, pp. 1033-1034; Richmond et al. 2013, p. 815). 
It is unknown if the small effective number of breeders that were 
measured for the western spadefoot are due to: (1) small population 
size due to population reductions; (2) recent extreme drought years 
throughout the western spadefoot's range; or (3) that the species has 
always had a low number of effective breeders per population. Our 
rangewide estimates for both the northern DPS and southern DPS of the 
western spadefoot are similarly low and consistent with the information 
provided in the initial study (i.e., Neal 2019, entire).
    Dispersal: Populations of western spadefoot need opportunities for 
dispersal and interbreeding among multiple well connected breeding 
pools (Halstead et al. 2021, pp. 1377-1393). Dispersal between breeding 
pools creates metapopulations that allow for gene flow, which is vital 
for preventing inbreeding (Neal et al. 2020, pp. 613-627), and allows 
for recolonization of areas (Halstead et al. 2021, p. 1378).
    Western spadefoots must disperse from their underground burrows to 
aquatic breeding habitat during the breeding season in order to 
reproduce. Seasonal precipitation is the environmental cue that 
initiates emergence and breeding dispersal to aquatic habitat (Dimmitt 
and Ruibal 1980, p. 26). The dispersal distance for the species is 
variable and heavily dependent on the amount and timing of 
precipitation in a given year (Baumberger et al. 2020, pp. 1, 7-8). The 
maximum dispersal distance recorded for the western spadefoot is 605 
meters (m) (1,985 feet (ft)) (Baumberger 2020, pers. comm.) with mean 
dispersal distances being 69 m (226 ft) to 137 m (450 ft) (Baumberger 
et al. 2020, p. 7; Service 2023 p. 19). After the breeding season, 
adults and juveniles must be able to return to their terrestrial 
habitat and occupy or create underground burrows for shelter during the 
hot, dry inactive period (approximately May-October).
Species Needs
    At the species level, we consider the needs of the northern DPS and 
southern DPS of the western spadefoot in terms of redundancy and 
representation. In the SSA report and this proposed rule, we evaluated 
the redundancy of the northern and southern DPSs of the western 
spadefoot by considering the number and distribution of sites occupied 
by each DPS within each region in relation to the scale of catastrophic 
events that are likely to occur. Having multiple populations that are 
interconnected and able to withstand stochastic events and are 
distributed in multiple areas throughout each of the regions in our 
analysis, would allow for each DPS to withstand catastrophic events and 
therefore have sufficient redundancy at the species level.
    Regarding representation, we consider the breadth of physical, 
ecological, and environmental diversity for the two DPSs based on their 
distribution within each geographic region. In general, these regions 
have broad distribution and the makeup of habitat within and between 
these regions encompass large physical, environmental, and climatic 
variability. These differences in conditions may influence temporal 
behaviors and may indicate genetic variability between geographic 
regions, which may help the two DPSs adapt to future environmental 
variability. Providing for each DPS of the western spadefoot with areas 
that represent the variation in climatic conditions and the unique 
biotic and abiotic features across each of the DPS's specific range 
would provide for representation for each DPS at the species level.

Threats Influencing the Current and Future Condition of the Western 
Spadefoot

    Below is a summary discussion of threats and our evaluation of the 
response to those threats as described and analyzed in the SSA report 
for the western spadefoot. The specific threats associated with each 
DPS are identified in the status discussion for each DPS below. For 
additional information on the threats, see the SSA report (Service 
2023, Chapters 8-10, pp. 22-82).
    Our assessment of current and future threats impacting the northern 
and southern DPSs of the western spadefoot identified habitat loss, 
habitat condition (fragmentation, degradation, or alteration), 
nonnative predators, disease, wildfire, chemical contaminants, noise 
disruptions, the effects from climate change, and their cumulative 
impacts. We also considered existing conservation efforts and how they 
may be ameliorating the current threats. The threats we identified as 
having the most impact and potentially driving the status of the two 
DPSs include: the effects to habitat (loss, degradation, alteration, or 
fragmentation) (Factor A) from urbanization or land conversion and the 
effects of climate change related to drought and increasing 
temperatures (Factor E). For a discussion of the threats of nonnative 
predators, disease, wildfire, chemical contaminants, and noise 
disturbance, please see the SSA report (Service 2023, pp. 22-32).
    In our assessment of the future threats impacting the two DPSs, we 
projected the main driving threats identified above out 30-40 years to 
approximately

[[Page 84262]]

mid-century (to 2060). We based this timeframe on information regarding 
the effects of climate change and expected human population growth. 
This timeframe represents estimates of mid-century climate projections 
and human population and development projections for California (The 
California Economic Forecast 2017, p. 2; Bedsworth et al. 2018, p. 23). 
This timeframe also represents multiple generations (5 to 6) for the 
species as well multiple potential periods of severe drought conditions 
as based on recent past climate change trends. The current and future 
threats and their impact to the western spadefoot are summarized below.

Habitat Loss

    Both the northern DPS and southern DPS of the western spadefoot 
suffered dramatic habitat reductions in the mid to late 1900s when 
urban and agricultural development and water storage and delivery 
construction were rapidly destroying natural habitats in the Sacramento 
Valley, Central Valley, and southern California (Jennings and Hayes 
1994, p. 96; Thomson et al. 2016, p. 134). This loss of habitat has 
been attributed as the predominant factor in the change from past 
abundance to the current fragmented distribution of the species (Morey 
2005, p. 515). Although large-scale rapid loss of habitat has curtailed 
due to both a decrease in habitat conversion and implemented 
conservation efforts, we expect a low but persistent level of habitat 
loss from development and land conversion to continue to varying 
degrees within the range of the two DPSs in the future, especially near 
large, urbanized areas throughout the two DPSs' ranges.

Habitat Fragmentation, Degradation, or Alteration

    The latent effects of habitat loss described above have led to much 
of the remaining occupied western spadefoot habitat becoming fragmented 
or isolated. Encroachment on and bifurcation of western spadefoot 
habitat from urbanization, agriculture, roads, canals, and other human 
associated features and infrastructure have reduced the extent of 
upland habitat, restricted dispersal opportunities, altered hydrology 
of aquatic habitat, and increased anthropogenic effects (i.e., 
increased pollution, debris, human or pet access). Such impacts have 
limited the size of existing habitat and most likely reduced western 
spadefoot population abundance and distribution within the occupied 
areas. Small remnant areas may contain aquatic habitat with a shortened 
inundation period or provide less upland habitat, thereby reducing the 
needs of the western spadefoot (Shedd 2016, p. 20).
    In addition, the plant community within the grassland landscapes in 
California has dramatically changed since European settlement of the 
area (Burcham 1956, pp. 81-85). These changes resulted from numerous 
factors including the reduction of wetlands, changes to native 
herbivore abundance and distribution, reduction of wildfire, and 
changes in vegetation from mostly perennial grasslands to annual 
nonnative species (Barry et al. 2006, pp. 7-9). Nonnative annual 
vegetation or overabundance of vegetation can degrade vernal pool 
habitat by intrusion into the ponded areas, increasing vegetative 
matter, or causing shortening of the hydroperiod of the pools (Clark et 
al. 1998, pp. 251-252; Marty 2005, pp. 1626-1632). Over time, such 
degradation and alteration may cause vernal pool and other wetland 
habitats to be less productive or be lost as breeding habitat for the 
western spadefoot due to changes in environmental conditions, reduction 
in upland areas, or lack of management options to maintain and conserve 
such areas (Marty 2005, p. 1626; Service 2005, pp. I-16-I-28, II-232-
II-234; Vollmar et al. 2017, pp. 2-13).

The Effects of Climate Change

    The effects of climate change impact numerous environmental 
conditions both directly and indirectly and include temperature, 
precipitation, wildfire frequency and intensity, sea-level rise, and 
drought conditions. In determining the effects of climate change on the 
western spadefoot, we looked at the impact of the effects of climate 
change as they relate to drought conditions and increased temperatures 
because these factors most likely impact the species' aquatic habitat 
that is required for breeding and rearing purposes.
    Drought Conditions: Western spadefoots are dependent on the timing 
and amount of seasonal precipitation (precipitation patterns) as well 
as other environmental conditions for supplying both feeding and 
breeding resources for the species to meet its life-history 
requirements. Precipitation provides not only moisture for ponded 
habitat and prey but also cues western spadefoot to emerge from their 
underground burrows. In addition, the aquatic habitat must be a 
particular temperature and stay ponded during specific timeframes and 
length of time for western spadefoot reproduction to be successful 
(Service 2023, pp. 29-30).
    California's annual and seasonal precipitation patterns are 
extremely variable, and dry conditions are common (California 
Department of Water Resources 2021, entire). As discussed above and in 
the SSA report, western spadefoots are adapted to dry conditions by 
both behavioral and physiological characteristics (see Species and 
Habitat Information above and Chapter 5 in the SSA report (Service 
2023, pp. 9-10). The U.S. Drought Monitor (a partnership of several 
Federal agencies and programs) gathers national precipitation 
information and categorizes normal and dry years (drought conditions) 
into six categories of increasing dryness and severity that includes: 
normal or wet conditions (None), abnormally dry (level D0), moderate 
drought (level D1), severe drought (level D2), extreme drought (level 
D3), and exceptional drought (level D4) (U.S. Drought Monitor 2023, 
entire). Within the last 15 years, portions of California within the 
western spadefoot's range have experienced extreme drought conditions 
(D3 conditions) in 2007-2009, 2012-2014, and again in 2020 and 2022 
(Williams et al. 2015, pp. 6823-6824; NOAA 2021a and 2021b, entire; 
California Department of Water Resources 2022, pp. 2-4) and exceptional 
drought conditions (D4 conditions) in 2014-2016 and 2021 (NOAA 2021a 
and 2021b, entire). Drought decreases the quality and quantity of 
aquatic breeding pools available for western spadefoots. Without 
aquatic breeding pools available, dispersal and reproductive 
opportunities are limited and may ultimately reduce the abundance of a 
population if those conditions continue over extended periods. Such 
drought conditions are expected to continue into the future 
(Diffenbaugh et al. 2015, pp. 3931-3936; Bedsworth et al. 2018, pp. 24-
27). These recent extreme drought events (such as the 2012-2014 
drought) may be a contributing factor to the currently estimated low 
effective number of breeders in western spadefoot populations (Williams 
et al. 2015, pp. 6819, 6826; Neal 2019, p. 32). Although it is 
uncertain whether the species' effective breeding population sizes will 
remain low or rebound from currently low levels, the lack of 
precipitation and the effects from severe droughts are a major driving 
threat and contribute to the current and future overall condition of 
the northern and southern DPSs of the western spadefoot.
    Increased Temperature: In California, as a result of climate 
change, the annual average temperatures have increased by about 0.8 
degrees Celsius ([deg]C) (1.5 degrees Fahrenheit ([deg]F)) since 1895,

[[Page 84263]]

with minimum temperatures rising nearly twice as fast as the maximum 
temperatures and the intensity, frequency, and duration of summer 
extreme heating events (heat waves) increasing since 1950 (Kadir et al. 
2013, pp. 38, 48).
    As stated in the SSA report, the aquatic habitat for western 
spadefoots must be within a particular temperature range and maintain 
inundation for egg development, tadpole growth, and metamorphosis to be 
successful (Storer 1925, p. 158; Burgess 1950, p. 49-51; Brown 1967, p. 
746; Feaver 1971, p. 53; Morey 1998, p. 86; Service 2023, p. 13). 
Higher ambient temperatures can influence water temperatures and dry 
aquatic habitat sooner, thereby shortening the appropriate breeding 
season for the western spadefoot.
    The future effects of climate change will likely continue to cause 
increased temperatures throughout the range of both western spadefoot 
DPSs (Bedsworth et al. 2018, p. 22). In California, statewide models 
project warming of an additional 2-4 [deg]C (3.6-7.2 [deg]F) 
(Representative Concentration Pathway (RCP) 4.5, medium-emissions 
scenario) to 4-7 [deg]C (7.2-12.6 [deg]F) (RCP 8.5, high-emissions 
scenario) by the end of the century depending on future greenhouse gas 
emissions (Pierce et al. 2018, pp. iv, 17-18). These mean annual 
changes in temperature will likely have impacts and be felt most 
strongly as extreme temperature events, which are predicted to increase 
(Pierce et al. 2018, pp. 18-19). The future impacts from increased 
temperatures would result in a continued negative impact on aquatic 
habitat, which may reduce opportunities for or result in a reduction in 
breeding success (by increasing water temperatures or reducing 
inundation periods) for the northern and southern DPSs of the western 
spadefoot.

Conservation Efforts and Regulatory Mechanisms

    Several vernal pool species (vernal pool crustaceans and plants) 
that occur within the range of both the northern and southern DPSs of 
the western spadefoot are listed as endangered or threatened species 
under the Act (Service 1998, p. 3; Service 2005, Table I-1, pp. I-4-I-
7). The western spadefoot is included as a covered species in the 2005 
Recovery Plan for Vernal Pool Species (Service 2005, pp. II-220-II-
235). In the northern DPS of the western spadefoot's range, the 
endangered Santa Barbara DPS (Service 2000, entire) and the threatened 
Central DPS (Service 2004, entire) of the California tiger salamander 
(Ambystoma californiense), and the threatened California red-legged 
frog (Rana draytonii) (Service 1996, entire) are found. The California 
red-legged frog also occurs in portions of the range of the southern 
DPS of the western spadefoot in southern California and Baja 
California, Mexico (Peralta-Garcia et al. 2016, pp. 168-170; Thomson et 
al. 2016, pp. 103-104). The California Department of Fish and Wildlife 
(CDFW), on its Special Animals List, considers the western spadefoot as 
a priority ``Species of Special Concern'' with a global and State 
ranking as a vulnerable species (G3 and S3--at moderate risk of 
extinction due to a restricted range, relatively few populations (often 
80 or fewer), recent and widespread declines, or other factors) 
(Thomson et al. 2016, p. 103; CDFW 2019, entire).
    As a result of these regulatory or recovery actions, a number of 
conservation efforts have been carried out directly and indirectly for 
the purpose of conserving and recovering listed vernal pool and 
amphibian species including the western spadefoot. Some of those 
conservation actions have included land acquisition and restoration for 
the purpose of protecting vernal pool and ponded habitat that is 
beneficial for the western spadefoot. A study of extant vernal pool 
habitat preserved within regions of the northern DPS of the western 
spadefoot found 270,329 ac (109,398 ha) out of 764,862 ac (309,529 ha) 
of extant vernal pool habitat (35 percent) protected in the northern 
DPS's range (Vollmar et al. 2017, pp. 1-14). In the southern DPS's 
range in California, approximately 157,554 ac (63,760 ha) of known 
western spadefoot habitat has been preserved out of approximately 
306,782 ac (124,151 ha) (approximately 51 percent) (Service 2023, table 
6). This conservation has been achieved in large part as a result of 
the land acquisition, protection, and restoration activities associated 
with Service-permitted Habitat Conservation Plans (HCPs) and State 
natural community conservation plans (NCCPs) (CDFW 2015, entire). The 
HCPs and NCCPs within the range of the two DPSs provide mechanisms to 
balance wildlife conservation with development or other activities that 
may negatively impact sensitive species. Currently, 15 HCPs and 15 
NCCPs (some are combined HCP/NCCPs) include western spadefoot as a 
covered species (5 HCPs are within the range of the northern DPS, and 
10 HCPs are within the range of the southern DPS in California) 
(Service 2023, pp. 101-108, Appendix A). When looking at all the 
conservation efforts for the western spadefoot the number of 
populations occurring on managed preserves and considered conserved is 
17 populations for the northern DPS and 102 populations for the 
southern DPS. Approximately 17 percent of the habitat available to the 
northern DPS is conserved, compared to approximately 50 percent for the 
southern DPS of the western spadefoot (Service 2023, p. 62). 
Conservation activities that have been included in HCPs for the western 
spadefoot include habitat protection, light pollution minimization, 
erosion control of vernal pool habitat, work windows that avoid the 
reproductive season when western spadefoot are dispersing, exclusion 
fencing, entrapment avoidance, and monitoring. Several large-scale HCPs 
have been implemented and are currently protecting large areas of 
habitat for the western spadefoot. Two examples of large-scale HCPs in 
the range of the southern DPS of the western spadefoot include the 2004 
Western Riverside County Multi-Species HCP (MSHCP) (Dudek and 
Associates 2003, entire) and the 1998 South County HCP in San Diego 
County (San Diego County 1998, entire). These two HCPs cover areas in 
the western portion of the southern DPS's range and help minimize the 
effects of urbanization, development, and other human activities as 
well as assist in maintaining populations of the southern DPS by 
establishing connected ecosystem preserves, controlling unauthorized 
access, monitoring habitat conditions, and maintaining and improving 
aquatic and upland habitat. Together, the two HCPs have established 
over 425,000 ac (171,992 ha) of preserve lands in the western portion 
of the southern DPS's range. Although not all of the preserve land is 
used by the southern DPS, the preserve land they do occupy within the 
two HCP areas is well connected and provides both aquatic and upland 
habitat of high quality.
    For the northern DPS of the western spadefoot several large-scale 
HCPs have also been implemented including the San Joaquin County Multi-
Species Habitat Conservation and Open Space Plan (San Joaquin Co. Plan) 
(San Joaquin County 2000, entire), the South Sacramento Habitat 
Conservation Plan (County of Sacramento et al. 2018, entire), and the 
Yolo HCP/NCCP (Yolo Habitat Conservancy 2018, entire). These plans 
cover areas in Central and Sacramento Valley portions of the northern 
DPS's range (San Joaquin, Sacramento, and Yolo Counties) and help 
minimize the effects of urbanization, development, and other human 
activities as well as assist in

[[Page 84264]]

maintaining populations of the northern DPS by establishing connected 
ecosystem preserves were possible, monitor habitat conditions, and 
maintain and improve aquatic and upland habitat for the northern DPS of 
the western spadefoot. The San Joaquin Co. Plan is the longest standing 
plan and has assisted in conserving approximately 20,196 ac (8,173 ha) 
of habitat including areas of vernal pools, seasonal wetlands, vernal 
pool grasslands, and foothill grasslands that are used by the northern 
DPS of the western spadefoot. The South Sacramento Habitat Conservation 
Plan and Yolo HCP/NCCP are recently approved and implemented plans and 
the level of conservation is not to the extent of the San Joaquin Co. 
Plan, although some conservation within the two plan areas has been 
implemented and previously established preserves (outside of the 
planning efforts) within the plan areas do protect and conserve habitat 
used by the northern DPS of the western spadefoot, especially in areas 
occupied by other listed species such as the vernal pool fairy shrimp 
(Branchinecta lynchi), vernal pool tadpole shrimp (Lepidurus packardi), 
and California tiger salamander.
    In addition to HCPs, several Department of Defense (DOD) facilities 
are within the range of both the northern and southern DPSs of the 
western spadefoot, and these installations have developed integrated 
natural resources management plans (INRMPs) that help guide management 
of natural resources in a manner consistent with sustainability of 
natural resources. Conservation measures within the INRMPs are included 
specifically for western spadefoot or for vernal pool habitat that 
western spadefoots use. The DOD facilities associated with western 
spadefoot in the northern DPS's range include the U.S. Army facilities 
of Fort Hunter Liggett in Monterey County (DOD 2022b, entire), and Camp 
Roberts in Monterey and San Luis Obispo County (DOD 2022a, entire) and 
Vandenberg Space Force Base in Santa Barbara County (DOD 2015, entire; 
DOD 2021, entire). The measures being implemented by these facilities 
are assisting to protect and conserve habitat and are assisting in 
providing localized connectivity of habitat and redundancy of habitat 
in areas under DOD jurisdiction.
    The DOD facilities in the southern DPS of the western spadefoot's 
range include areas in San Diego County associated with Marine Corp 
Base Camp Pendleton in the Coastal Military Land Region. The Base 
occupies approximately 125,000 ac (50,586 ha) in northwestern San Diego 
County. Surveys conducted in 2013 detected the southern DPS at 70 
locations across the Base. Conservation measures being implemented to 
conserve the southern DPS of the western spadefoot include: management 
and control of nonnative species; erosion control; education and 
training; habitat restoration, creation, and enhancement; off-road 
vehicle restrictions in sensitive areas; survey and monitoring; use 
adaptive management based on the best available science; and avoidance 
and minimization measures (MCB Camp Pendleton INRMP, DOD 2018, pp. N-
69-N-70). The measures being implemented by these facilities are 
assisting to protect and conserve habitat and are assisting in 
providing localized connectivity of habitat and redundancy of habitat 
in areas under DOD jurisdiction.
    However, conservation of habitat alone by HCPs and INRMPs or 
through other regulatory mechanisms would not reduce the impacts 
associated with increased temperatures or drought associated with the 
effects of climate change on the northern DPS and southern DPS of the 
western spadefoot.
Current Conditions
    We describe the current condition of the two DPSs of the western 
spadefoot by characterizing their status in terms of resiliency, 
redundancy, and representation by analyzing the impact of both threats 
and conservation efforts on each DPS's individual and population needs. 
Our analysis of the current condition of the two DPSs is limited to the 
available records of observations for the species, the habitat quantity 
and quality in the areas they occur, the availability of dispersal 
between populations, the magnitude and distribution of threats across 
the landscape acting on each DPS, and the number of effective breeders 
estimated for areas for which data were available.
    In our analysis of the recorded observations of the species, we 
reviewed those more recent records from 1980 to present to eliminate 
older records. In our analysis, we grouped occurrences within each of 
our defined geographic regions for each DPS. Regions with greater 
percentage of occupancy were considered to be able to better withstand 
any negative environmental or demographic stochastic events. Recent 
research has determined that habitat within a 2,000-m (6,562-ft) buffer 
of a spadefoot occurrence in the northern clade, and 1,000-m (3,281-ft) 
buffer in the southern clade, is the best predictor of habitat use for 
the two DPSs (Rose et al. 2020, p. 1; Rose et al. 2022, p. 9). To 
assess habitat quality, we reviewed the amount of grassland or shrub/
scrub habitat within these predicted use areas. Because the species is 
dependent on seasonal precipitation patterns to fill and pond aquatic 
habitat for breeding and rearing, we evaluated the number of average 
precipitation seasons over a lifespan of an individual (approximately 6 
years). By looking at this timeframe, we would be able to assess if an 
individual would have the opportunity to reliably breed and reproduce 
during its lifetime. However, as discussed above, the species is 
adaptable and is able to use nontraditional habitat such as roadside 
ditches, waterfilled depressions, and ponded intermittent stream 
habitat as well as their preferred vernal pool habitat. Finally, we 
looked at information regarding the number of effective breeders at 
various locations where that information was available for the two DPSs 
to assist in determining abundance (see Reproduction and Recruitment 
above and Service 2023, pp. 19-20, section 7.2.3 Abundance). In areas 
that did not have information on the effective number of breeders, we 
looked to areas that were adjacent or had similar habitat and 
environmental conditions and qualitatively made our assessment for that 
region. Due to the limited information on occurrence records in Mexico, 
we looked to the species' occurrence information and relative degree of 
threats for the areas where they occur. Although the number of 
effective breeders required to support populations of the species at 
any given location is unknown, we considered those regions with higher 
numbers to be in better condition than those with lower numbers. To 
determine the overall current condition of the species in a region, we 
assessed the number and distribution of records of the species, habitat 
quantity/distribution, habitat quality, precipitation, and abundance 
together in our analysis.
Western Spadefoot Northern DPS--Current Condition
    As discussed above, we divided the northern DPS of the western 
spadefoot into 10 regions. We evaluated the condition of each region 
individually and then determined the overall current condition of the 
northern DPS of the western spadefoot by combining our results for each 
region. Below we provide a summary of the current condition of the 
northern DPS of the western spadefoot.
    Current Resiliency. As discussed in the SSA report (Service 2023, 
pp. 39-46), because we have limited information on long-term population 
trends for the DPS, we evaluated the

[[Page 84265]]

northern DPS of the western spadefoot's resiliency as a function 
several factors including habitat quantity and distribution, habitat 
quality, precipitation and whether it provides for sufficient aquatic 
habitat over time, and estimated abundance based on the effective 
number of breeders, as discussed above.
    In reviewing the habitat conditions for the northern DPS of the 
western spadefoot, we found that, in the 10 regions we identified in 
our analysis, the majority (8 of 10) had large amounts of habitat that 
was well distributed throughout each region. The habitat quality for 
the regions varied geographically, with the regions associated with 
urbanized or fragmented habitat areas on the valley floor in low 
condition, and the regions located away from urbanized areas within 
higher elevation foothills of the Sierra Nevada Mountains or Coast 
Range having moderate or high quality habitat conditions. The rainfall 
or precipitation factor that we used in our analysis to account for the 
availability of aquatic habitat varied from high to moderate depending 
on the region's geographic distribution from north to south 
respectively, with those regions in the north having higher rainfall 
conditions. The demographic factor of abundance estimated by the 
effective number of breeders was found to be equally low for all 
regions and resulted in an overall current resiliency for the 10 
regions to be either in low-moderate or low condition with 6 in low and 
4 in low-moderate condition (Service 2023, pp. 32-48, table 3). 
However, as discussed above, the estimates for effective number of 
breeders is based on limited information and is considered very low 
when compared to other species and may either be a result of that 
incomplete information or that the species exhibits this life history 
trait and is able to maintain populations on the landscape despite low 
abundances. Based on the DPS's habitat factors being relatively high, 
all regions having recent occurrence records with evidence of breeding 
and recruitment, and the DPS being able to at least maintain 
populations throughout its historical range despite the latent impacts 
of habitat loss and current threats facing the DPS, we have determined 
that overall the populations of the northern DPS of the western 
spadefoot currently have sufficient resiliency to withstand population-
level stochastic disturbances.
    Current Redundancy. The northern DPS of the western spadefoot, 
despite habitat loss and fragmentation, is well distributed with 
approximately 160 local populations occupying areas throughout its 
historical range and in the regions that we identified for our 
analysis. Many of the areas occupied are also part of large-scale 
(county-wide) habitat conservation efforts or located on military 
installations (Camp Roberts, Fort Hunter Liggett, and Vandenberg Space 
Force Base), which have management plans in place to protect the DPS 
and its habitat. Other conserved and protected areas where the species 
occurs are located throughout the range of the DPS. As a result, the 
DPS currently has a sufficient number and distribution of populations 
to be able to spread the risk among multiple populations to minimize 
the potential loss of the DPS from catastrophic events. Therefore, we 
consider the northern DPS of the western spadefoot to currently have 
sufficient redundancy.
    Current Representation. The northern DPS of the western spadefoot 
is distributed within the 10 regions identified in our analysis. As 
discussed above, we identified our analysis regions partly on the 
vernal pool regions identified by the California Department of Fish and 
Wildlife's California Vernal Pool Assessment Preliminary Report 
(Keeler-Wolf et al. 1998, pp. 12-15). These regions define vernal pool 
habitat largely on the basis of ecological characteristics, endemic 
species, soils, and geomorphology, and species occupying these habitats 
are uniquely adapted to the characteristics of the habitat where they 
occur. Because the DPS still maintains its distribution within all 
regions identified, we would expect the DPS to have sufficient 
ecological diversity and be able to adapt to the various environmental 
conditions it currently faces in the regions it occurs. Therefore, we 
consider the northern DPS of the western spadefoot to currently have 
sufficient representation.
Western Spadefoot Southern DPS--Current Condition
    The current distribution of the southern DPS of the western 
spadefoot in California and Mexico is similar to its historically 
occupied range except for the areas associated with the heavily 
urbanized areas of the Los Angeles basin, San Diego County, Taiquana, 
Mexico, and other heavily developed areas along the California and Baja 
California coast (Service 2023, pp. 7-8). Recent occurrence information 
in Baja California, Mexico, has identified additional occurrence 
records throughout the historically occupied range of the species in 
Mexico (Amphibian and Reptile Atlas of Peninsular California 2023, 
entire). Based on this information, we consider that the DPS to have 
numerous well distributed populations consisting of recent (2018-2023) 
records (Amphibian and Reptile Atlas 2023, entire; CNDDB 2023, entire).
    Current Resiliency. As discussed above, we have limited information 
on long-term population trends and abundance information for the 
species. As a result, we evaluated the southern DPS of the western 
spadefoot's current resiliency as a function of habitat quantity/
distribution, habitat quality, precipitation, and demographic factors.
    In reviewing the habitat for the southern DPS of the western 
spadefoot, we found that 9 of 10 regions have sufficient quantity of 
habitat that is well distributed throughout each region. As a result we 
categorized the habitat quantity and distribution to be high. The 
remaining region (Baja Central) is categorized as having low habitat 
quantity and distribution because of the limited information on the 
known populations in the regions and the makeup of their habitat. 
However, one population in Baja California is surrounded by habitat 
that is comprised of more than 80 percent grassland or scrub/shrub 
habitat (high category). As discussed above, recent information has 
identified additional occurrence records in the region and these 
records, based on our evaluation of aerial imagery, occur mostly in 
areas of suitable habitat type and are located away from development 
(Amphibian and Reptile Atlas 2023, entire).
    The habitat quality in 7 of 10 regions is high with 3 in the low 
category. The 3 regions in low occur in Baja California, Mexico (Baja 
Northwest, Baja Central, and Baja South) because the percentage of 
grassland or scrub/shrub habitat within a recommended distance from 
some of the occurrence locations is below the threshold for this 
species--80 percent. However, although specific habitat information is 
not available, a review of the aerial imagery associated with the 
recent Baja California records identifies large portions of open 
grassland or shrub/scrub habitat type, but the exact type is uncertain. 
The rainfall or precipitation factor attributing to the likelihood of 
ponded habitat being available in each region was considered moderate 
based on precipitation patterns being relatively uniform across the 10 
geographic regions.
    The demographic factor of abundance estimated by the effective 
number of breeders was considered low for all regions except the Baja 
Central and Baja South Regions in Mexico, which we identified as 
unknown. The

[[Page 84266]]

demographic factor of abundance estimated by the effective number of 
breeders was found to be equally low for all regions and resulted in an 
overall current resiliency for 7 of 10 regions to be low-moderate and 1 
region in low condition (Service 2023, pp. 50-56, table 4). However, as 
discussed above, the estimates for effective number of breeders is 
based on limited information and is considered very low when compared 
to other species and may either be a result of that incomplete 
information or that the species exhibits this life history trait and is 
able to maintain populations on the landscape despite low abundances. 
Based on the DPS's habitat factors being relatively high, all regions 
having recent occurrence records with evidence of breeding and 
recruitment, the reduction of threats due to conservation efforts (see 
redundancy below), and the DPS being able to at least maintain 
populations throughout its historical range despite the latent impacts 
of habitat loss and current threats facing the DPS, we have determined 
that overall, the populations of the southern DPS of the western 
spadefoot currently have sufficient resiliency to withstand population-
level stochastic disturbances.
    Current Redundancy. The southern DPS of the western spadefoot, 
despite habitat loss and fragmentation, is well distributed with more 
than 300 local populations currently extant and occupying all areas 
throughout its historical range. Many of the areas occupied are also 
part of large-scale (county wide) habitat conservation efforts (10 HCPs 
that identify the southern DPS as a covered species) that have 
conserved approximately 51 percent of available habitat for the DPS 
(Vollmar et al. 2017, pp. 1-14) or located on military installations 
(Marine Corps Base Camp Pendleton), which have management plans in 
place to protect the DPS and its habitat. Other conserved and protected 
areas where the DPS occurs are located throughout the range of the DPS. 
As a result, the DPS currently has a sufficient number and distribution 
of populations to be able to spread the risk among multiple populations 
to minimize the potential loss of the DPS from catastrophic events. 
Therefore, we consider the southern DPS of the western spadefoot to 
currently have sufficient redundancy.
    Current Representation. The southern DPS of the western spadefoot 
is distributed within the 10 regions identified in our analysis. As 
discussed above, we identified our analysis regions partly on the 
vernal pool regions identified by the California Department of Fish and 
Wildlife's California Vernal Pool Assessment Preliminary Report 
(Keeler-Wolf et al. 1998, pp. 12-15) as well as species expert 
information. Because the DPS still maintains its distribution within 
all the regions identified, we would expect the DPS to have sufficient 
ecological diversity and be able to adapt to the various environmental 
conditions it currently faces based on the variable ecological regions 
in which it occurs and its adaptability of aquatic habitat it uses for 
breeding. Therefore, we consider the southern DPS of the western 
spadefoot to currently have sufficient representation.
    The latent effects and current impacts from urbanization have 
resulted in a reduction and fragmentation of the southern DPS's 
habitat, thereby reducing connectivity between occupied areas and 
isolating populations. Recent severe multi-year drought conditions have 
impacted aquatic habitat across the DPS's range, limited breeding 
opportunities, and most likely contributed to the limited number of 
breeders being currently estimated for the DPS. However, our review of 
the DPS's current condition has found that the currently extant 
populations frequently occur in clusters of high-quality grassland and 
scrubland habitat that is within close proximity. Having numerous well 
distributed populations in high-quality aquatic and upland habitat will 
assist in reducing the impacts of drought. This gives the DPS the 
opportunity for dispersal and provides demographic connectivity. In 
addition, extensive habitat management in place through HCPs and INRMPs 
has been implemented, which assists in offsetting the effects of past 
habitat loss by protecting both the aquatic and upland estivation 
habitat as well as connectivity between such features. Because the DPS 
has more than 300 currently extant populations that are well 
distributed on the landscape and occur in high quality aquatic and 
upland habitat and many of these areas having substantial in-place and 
ongoing conservation and management to assist in protecting, 
conserving, and maintaining habitat availability, distribution, and 
quality for the DPS, we consider that the southern DPS of the western 
spadefoot to currently have sufficient resiliency, redundancy, and 
representation.
Future Conditions
    Below we provide information on the future condition of the 
northern DPS and the southern DPS of the western spadefoot.
Western Spadefoot Northern DPS--Future Condition
    As discussed in the SSA report, to assist in our analysis of the 
northern DPS of the western spadefoot's future condition, we developed 
three plausible future scenarios based on differing emission 
projections and threat levels (RCP 4.5, RCP 8.5 with a continued threat 
level, and RCP 8.5 with increased threat levels) looking out 
approximately 30-40 years (Service 2023, chapter 10, pp. 57-82). This 
range represents estimates of mid-century climate projections and human 
population growth and development projections for California (The 
California Economic Forecast 2017, p. 2; Bedsworth et al. 2018, p. 23; 
California Department of Finance 2023, entire). Emission projections 
and their effects on climatic conditions are projected to at least the 
year 2100 (approximately 75 years). However, the timeframe we can 
reasonably predict the western spadefoot's response to these changing 
climate conditions is shorter due to the lifespan of the species and 
uncertainties associated with localized climate conditions. As a 
result, our foreseeable future is considered to extend to approximately 
the year 2060. This timeframe considers both environmental (the effects 
of climate impacts) and human use impacts (effects from habitat loss, 
fragmentation, degradation, and alteration) as we can reasonably 
predict the two DPS's response to these threats into the future. 
Scenario 1 includes an emission threshold of RCP 8.5 with increasing 
threats associated with development and drought. Scenario 2 includes a 
continuation of existing threats at their current magnitude under an 
RCP 8.5 emission threshold. This would result in decreases in habitat 
quality and increase of the effects of climate change. Scenario 3 
includes threats following an RCP 4.5 emission threshold that would 
also cause a decrease in habitat quality and increase of the effects of 
climate change but at lower levels (Service 2023, pp. 61, table 5).
    As stated above, the current populations of the northern DPS of the 
western spadefoot still occur throughout their historical range 
although the habitat has been fragmented and some populations are 
isolated and are most likely small with limited effective population 
sizes. In the future, drought conditions are expected to become more 
frequent and be of higher intensity and duration. The future condition 
that is consistent across all three scenarios is increasing effects of 
climate change (drought, increased temperatures), with

[[Page 84267]]

impacts only varying by degree. These impacts would most likely affect 
the DPS's aquatic habitat and its ability breed and reproduce and 
result in additional reductions in population size. Although the 
western spadefoot is adapted to variable environmental conditions such 
as drought, extended drought periods may become more frequent and may 
increase the timeframe between successful breeding events, which in 
some cases may be beyond the life expectancy of adults. This would lead 
to a reduction in population size and may extirpate smaller populations 
or those occupying degraded or fragmented habitat. Human population 
growth and the effects of urbanization are expected to continue in the 
future and would further fragment and degrade habitat, reduce 
population connectivity, and result in additional population declines 
across the approximately 160 current local populations. Potential 
extirpations of populations of the northern DPS of the western 
spadefoot from regions would result in fewer populations to maintain 
redundancy and thereby compromise the DPS's ability to withstand even 
localized catastrophic events. The loss of populations may also result 
in a decline of genetic diversity or occupancy in the variable 
ecological settings where it currently occurs thereby reducing the 
representation of the northern DPS of the western spadefoot.
Western Spadefoot Southern DPS--Future Condition
    Our method for analyzing the future condition of the southern DPS 
of the western spadefoot is the same as for the northern DPS. As stated 
above, the current populations of the southern DPS of the western 
spadefoot have been fragmented and are isolated and are most likely 
small with a limited number of expected breeders. Increasing effects of 
climate change in the future (drought, increased temperatures) are 
projected across all three future scenarios, affecting the DPS's 
aquatic habitat and its ability to breed and reproduce, resulting in 
additional reductions in population size. More frequent, extended 
drought periods may be beyond the life expectancy of adults. This would 
lead to reductions in population sizes and may extirpate smaller 
populations or those occupying degraded or fragmented habitat. In the 
future, we would expect the impacts from largescale habitat loss due to 
urbanization or other land use conversion to be diminished due to 
conservation efforts associated with HCPs and INRMPs. However, we 
expect the effects of climate change associated with drought to 
increase. Reductions in resiliency and/or extirpation of populations of 
the southern DPS of the western spadefoot would result in fewer 
populations to maintain redundancy, compromising the DPS's ability to 
withstand catastrophic events. The loss of populations may also result 
in a decline of genetic diversity or occupancy in the variable 
ecological settings where it currently occurs, reducing representation 
of the southern DPS of the western spadefoot into the future.

Determination of Western Spadefoot Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of an endangered 
species or a threatened species because of any of the following 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) Overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) The inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.

Determination of Status for the Northern DPS and Southern DPS of the 
Western Spadefoot

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the northern DPS and southern DPS of the western spadefoot and its 
habitat. Below we summarize our assessment of the current and future 
status of each DPS of the western spadefoot under the Act.

Northern DPS of the Western Spadefoot: Status Throughout All of Its 
Range

    In our analysis of the northern DPS's current status, we identified 
threats acting on the DPS to varying degrees, including impacts from 
development and urbanization (factor A), agricultural land conversion 
(factor A), chemical contaminants (factor E), nonnative predators 
(factor C), wildfire (factor A), noise disturbance (factor E), and the 
effects associated with climate change (most notably drought) (factor 
E). Of these threats, we identified habitat loss and degradation from 
urbanization (factor A) and the effects of climate change (factor E) 
mostly associated with severe drought as the major influences driving 
the current condition of the northern DPS of the western spadefoot.
    Currently, the latent effects and current impacts from urbanization 
and other land conversion have resulted in a reduction, fragmentation, 
and degradation of the northern DPS's habitat (both upland and 
aquatic), thereby reducing connectivity between occupied areas and 
isolating populations. Aquatic habitat used for breeding, reproduction, 
and rearing has been impacted by severe multi-year drought conditions 
across the DPS's range and has limited breeding opportunities, and most 
likely contributed to the limited number of breeders estimated for the 
DPS. After evaluating threats to the northern DPS of the western 
spadefoot and assessing the cumulative effect of the threats under the 
Act's section 4(a)(1) factors, we have determined that overall 
viability of the DPS has declined from historical levels.
    However, we find that currently the DPS: (1) maintains populations 
with sufficient resiliency to be able to withstand the environmental or 
demographic stochastic events currently impacting the DPS; (2) 
maintains sufficient redundancy to withstand the catastrophic impacts 
it is facing such as the effects of climate change associated with 
drought; and (3) maintains sufficient representation based on the 
breadth of its populations occurring in the variable and unique 
habitats where it is currently known to occur, thereby maintaining the 
breadth of environmental diversity within or between populations.
    The current viability of the DPS is based on (1) number and 
distribution of populations currently extant; (2) the amount, 
distribution, and quality of habitat currently available and used by 
populations of the DPS; (3) the current ability of the DPS to maintain 
its populations despite the existing threats; (4) and the amount of 
management, protections, and conservation currently afforded to the DPS 
through existing HCPs and INRMPs on military lands that have identified 
the western spadefoot or its habitat for conservation.
    Although we have concluded that impacts resulting from present-day 
threats are currently negatively affecting the northern DPS of the 
western spadefoot, the DPS still has a sufficient

[[Page 84268]]

degree of resiliency, redundancy, and representation. As such, after 
assessing the best available information, we conclude that the northern 
DPS of the western spadefoot is not currently in danger of extinction.
    The main driving threats of increased frequency, magnitude, and 
duration of drought and latent and cumulative impacts of habitat loss 
(i.e., fragmentation, isolation, degradation) are expected to 
negatively affect the DPS into the future. Effects of climate change 
(drought, increased temperatures) are projected to increase across all 
three future scenarios in the next 30-40 years, affecting the DPS's 
aquatic habitat and its ability breed and reproduce, resulting in 
additional reductions in population size. More frequent, extended 
drought periods may be beyond the life expectancy of adults. This would 
lead to reductions in population sizes and may extirpate smaller 
populations or those occupying degraded or fragmented habitat. In the 
future, human population growth and the effects of urbanization are 
expected to continue and would further fragment and degrade habitat, 
reduce population connectivity, and result in additional population 
declines across the range of the DPS. Reductions in resiliency and 
extirpation of populations of the northern DPS of the western spadefoot 
would result in fewer populations to maintain redundancy, compromising 
the DPS's ability to withstand catastrophic events. The loss of 
individuals and populations may also result in a decline of genetic 
diversity or occupancy in the variable ecological settings where it 
currently occurs, reducing representation of the northern DPS of the 
western spadefoot into the future.
    After evaluating threats to the northern DPS of the western 
spadefoot and assessing the cumulative effect of the threats under the 
Act's section 4(a)(1) factors, as well as considering the conservation 
efforts currently in place, we find that populations of the northern 
DPS of the western spadefoot will continue to decline over the next 30-
40 years such that the northern DPS is likely to become in danger of 
extinction throughout all of its range within the foreseeable future 
due to increased frequency, intensity, and duration of drought 
conditions and impacts from continued human development, urbanization, 
and land use conversion. Thus, after assessing the best information 
available, we determine that the northern DPS of the western spadefoot 
is not currently in danger of extinction but is likely to become in 
danger of extinction within the foreseeable future throughout all of 
its range.

Northern DPS of the Western Spadefoot: Status Throughout a Significant 
Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 435 
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of the 
Final Policy on Interpretation of the Phrase ``Significant Portion of 
Its Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species'' (hereafter ``Final Policy''; 79 FR 
37578, July 1, 2014) that provided if the Services determine that a 
species is threatened throughout all of its range, the Services will 
not analyze whether the species is endangered in a significant portion 
of its range.
    Therefore, we proceed to evaluating whether the DPS is endangered 
in a significant portion of its range--that is, whether there is any 
portion of the DPS's range for which both (1) the portion is 
significant; and (2) the DPS is in danger of extinction in that 
portion. Depending on the case, it might be more efficient for us to 
address the ``significance'' question or the ``status'' question first. 
We can choose to address either question first. Regardless of which 
question we address first, if we reach a negative answer with respect 
to the first question that we address, we do not need to evaluate the 
other question for that portion of the DPS's range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the DPS's range where the DPS is 
in danger of extinction now (i.e., endangered). In undertaking this 
analysis for the northern DPS of the western spadefoot, we choose to 
address the status question first--we consider information pertaining 
to the geographic distribution of both the DPS and the threats that the 
DPS faces to identify any portions of the range where the DPS may be 
endangered.
    We evaluated the range of the northern DPS of the western spadefoot 
to determine if the DPS is in danger of extinction now in any portion 
of its range. The range of a DPS can theoretically be divided into 
portions in an infinite number of ways. We focused our analysis on 
portions of the DPS's range that may meet the definition of an 
endangered species. For the northern DPS of the western spadefoot, we 
considered whether the threats or their effects on the DPS are greater 
in any biologically meaningful portion of the DPS's range than in other 
portions such that the DPS is in danger of extinction now in that 
portion.
    We examined the following threats: habitat loss, degradation, 
fragmentation, and isolation; nonnative species impacts (predation and 
competition); and the effect associated with climate change (increased 
temperature and severe drought), including cumulative effects. The 
impacts of these threats have affected and continue to impact the 
northern DPS of the western spadefoot across it range. Past habitat 
loss due to wetland and upland losses from urbanization and land 
conversion for agricultural purposes has occurred uniformly throughout 
the range of the DPS. The remaining areas where the habitat remains and 
the DPS occurs are limited to isolated and disjunct fragments of a once 
interconnected and expansive ecosystem. Current impacts from 
urbanization and agricultural land conversion are still occurring but 
have decreased in extent and magnitude from the conversions that 
occurred through at least the mid-twentieth century. However, the 
latent effects from historical losses such as population isolation, 
habitat fragmentation, and loss of representation and redundancy 
continue to affect the DPS across its range. This situation is 
reflected by the DPS's current distribution and occupancy in remnant 
grassland areas in the Sacramento and San Joaquin Valleys and within 
low-elevation foothill areas of the Sierra Nevada Mountains and Central 
Coast Range.
    In our analysis of the current resiliency of the 10 regions for the 
northern DPS of the western spadefoot, the Solano-Colusa Region had the 
lowest resiliency score and was the only region to also have a low 
habitat quantity/distribution score. In a review of the other 9 
regions, 8 of 9 regions had high habitat quantity/distribution scores 
with 1 region having a moderate habitat quantity/distribution score. We 
determined regions with high or moderate habitat quantity/distribution 
scores to be able to currently provide sufficient opportunities for the 
DPS to meet its life history needs and therefore withstand stochastic 
and catastrophic events. As a result, we further reviewed the DPS's 
occurrence and habitat conditions in the Solano-Colusa Region to 
determine if the region may have a different status than the rest of 
the regions.
    The number of western spadefoot records in the Solano-Colusa Region 
is limited to 10 records (CNDDB 2023, entire) and mostly occur within 
natural

[[Page 84269]]

grassland or low elevation foothills between the Coast Range and 
Sacramento Valley in northern Yolo and southern Colusa County west of 
Interstate 5 and the town of Dunnigan, California. The habitat 
surrounding most of the records is made up of agricultural croplands, 
but other records do occur surrounding the area in natural grassland 
habitat. The records are relatively recent (1990 to 2019) and are 
associated with ephemeral creeks, artificially ponded livestock ponds, 
and natural intermittently ponded habitat in the rolling grassland and 
oak woodland habitat (CNDDB 2023, entire). The California tiger 
salamander also co-occurs with the northern DPS in this concentrated 
area and records have been found in a similar timeframe (1990 to 2017) 
(CNDDB 2023, entire). California tiger salamanders have similar life 
history and habitat requirements as the northern DPS of the western 
spadefoot. The California tiger salamander is a covered species within 
the Yolo HCP/NCCP which has identified the area for conservation by 
protecting 2,000 ac (809 ha) of upland habitat and approximately 36 ac 
(15 ha) of aquatic habitat in the area. Additional conservation 
measures include the requirement of some State and local projects 
occurring in any identified conservation areas would require a 
biological impact assessment before implementation, mitigation of 
impacts from activities, restoration and management of habitat, and 
implementation of a survey and monitoring program (Yolo Habitat 
Conservancy 2018, pp. ES-21, ES-22, and 3-18, 3-19). Although the 
habitat requirements of the California tiger salamander and the 
northern DPS are not exact and threats acting on them may impact each 
entity differently, preservation and management of both aquatic and 
upland habitat will benefit the northern DPS of the western spadefoot 
in the Solano-Colusa Region.
    In our analysis of the current condition of populations and 
resiliency in the SSA report, we looked to the number of populations 
and their distribution and the percentage of grassland habitat 
surrounding each population (Service 2023, pp. 34-38). Given the low 
number of records, their distribution in mostly two populations, and 
the area mostly surrounded by agricultural lands, we identified the 
habitat factors for the region to be low. However, after considering 
the information above regarding occupancy over time and the 
conservation measures in place for both aquatic and upland habitat 
being used by the northern DPS, we have determined that the northern 
DPS in the Solano-Colusa Region has sufficient resiliency, redundancy, 
and representation to currently maintain populations in the wild.
    Although within the Solano-Colusa Region, the biological condition 
of the DPS differs from its condition elsewhere in its range, the best 
scientific and commercial information available do not indicate that 
the threats, or the species' responses to the threats, are such that 
the northern DPS of the western spadefoot is currently in danger of 
extinction in the identified portion. Based on the discussion outlined 
above, we find that the Solano-Colusa portion of the northern DPS is 
not in danger of extinction now.
    Therefore, no portion of the northern DPS of the western 
spadefoot's range provides a basis for determining that the DPS is in 
danger of extinction in a significant portion of its range, and we 
determine that the DPS is likely to become in danger of extinction 
within the foreseeable future throughout all of its range. This 
determination does not conflict with the courts' holdings in Desert 
Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 
1070-74 (N.D. Cal. 2018) and Center for Biological Diversity v. Jewell, 
248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, in reaching this 
conclusion, we did not apply the aspects of the Final Policy, including 
the definition of ``significant'' that those court decisions held to be 
invalid.

Northern DPS of the Western Spadefoot: Determination of Status

    Our review of the best scientific and commercial information 
available indicates that the northern DPS of the western spadefoot 
meets the definition of a threatened species. Therefore, we propose to 
list the northern DPS of the western spadefoot as a threatened species 
in accordance with sections 3(20) and 4(a)(1) of the Act.

Southern DPS of the Western Spadefoot: Status Throughout All of Its 
Range

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the southern DPS of the western spadefoot and its habitat. Below we 
summarize our assessment of the current and future status of the 
southern DPS of the western spadefoot under the Act.
    As stated above, some populations of the southern DPS of the 
western spadefoot have been fragmented and are isolated and are most 
likely small with a limited number of effective breeders. However, our 
analysis of the current condition of the southern DPS of the western 
spadefoot, as assessed in the SSA report, shows that populations of the 
DPS are well distributed with multiple populations across all the 
ecological settings within the DPS's range. While threats are currently 
acting on the DPS at the individual level and many of those threats are 
expected to continue into the future, the main driving threats of 
habitat loss and the effects of climate change are not currently 
impacting the DPS as a whole across its range to the level to cause the 
DPS to not be able to sustain populations in the wild in the near term. 
The quality and distribution of occupied habitat for the southern DPS 
of the western spadefoot is considered high and we have determined that 
it will be able to support populations and withstand habitat loss 
impacts due to large areas being protected through HCPs and INRMPs and 
environmental impacts, including impacts from drought at least in the 
near term. This is reflected by the DPS's current distribution and 
occupancy across more than 300 local populations despite previous long 
term and severe drought conditions. As a result, we do not find that 
the southern DPS of the western spadefoot is currently in danger of 
extinction throughout all of its range.
    In the future, we would expect the latent impacts of habitat loss 
to continue and the effects of climate change associated with drought 
to increase. Effects of climate change in the future (drought, 
increased temperatures) are projected to increase across all three 
future scenarios in the next 30-40 years, affecting the DPS's aquatic 
habitat and its ability breed and reproduce, resulting in additional 
reductions in population size. More frequent, extended drought periods 
may be beyond the life expectancy of adults. This would lead to 
reductions in population sizes and may extirpate smaller populations or 
those occupying degraded or fragmented habitat. In the future, we would 
expect the impacts from largescale habitat loss due to urbanization or 
other land use conversion to be diminished due to conservation efforts 
associated with HCPs and INRMPs. However, we expect the effects of 
climate change associated with drought to increase. Reductions in 
resiliency and/or extirpation of populations of the southern DPS of the 
western spadefoot would result in fewer populations to maintain 
redundancy, compromising the DPS's ability to withstand catastrophic 
events. The loss of populations may also result in a decline of genetic 
diversity or

[[Page 84270]]

occupancy in the variable ecological settings where it currently 
occurs, reducing representation of the southern DPS of the western 
spadefoot into the future.
    After evaluating threats to the southern DPS of the western 
spadefoot and assessing the cumulative effect of the threats under the 
Act's section 4(a)(1) factors, as well as considering the conservation 
efforts currently in place, we find that populations of the southern 
DPS of the western spadefoot will continue to decline over the next 30-
40 years such that the southern DPS is likely to become in danger of 
extinction throughout all of its range within the foreseeable future 
due to increased frequency, intensity, and duration of drought 
conditions and impacts from the past effects of development, 
urbanization, and land use conversion. Thus, after assessing the best 
information available, we determine that the southern DPS of the 
western spadefoot is not currently in danger of extinction but is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range.

Southern DPS of the Western Spadefoot: Status Throughout a Significant 
Portion of Its Range

    Having determined that the southern DPS of the western spadefoot is 
not currently in danger of extinction but likely to become so in the 
foreseeable future throughout all of its range, we now consider whether 
any significant portion of the southern DPSs range may be in danger of 
extinction--that is, whether there is any portion of the DPS's range 
for which it is true that both (1) the portion is significant; and (2) 
the DPS is in danger of extinction now in that portion. Depending on 
the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the DPS's range.
    In undertaking this analysis for the southern DPS of the western 
spadefoot, we choose to address the status question first--we consider 
information pertaining to the geographic distribution of both the DPS 
and the threats that the DPS faces to identify any portions of the 
range where the DPS may be endangered.
    We evaluated the range of the southern DPS of the western spadefoot 
to determine if the DPS is in danger of extinction now in any portion 
of its range. The range of a DPS can theoretically be divided into 
portions in an infinite number of ways. We focused our analysis on 
portions of the DPS's range that may meet the definition of an 
endangered species. For the southern DPS of the western spadefoot, we 
considered whether the threats or their effects on the DPS are greater 
in any biologically meaningful portion of the DPS's range than in other 
portions such that the DPS is in danger of extinction now in that 
portion.
    For the southern DPS of the western spadefoot, we examined the 
following threats: habitat loss, degradation, fragmentation, and 
isolation; nonnative species impacts (predation and competition); and 
the effect associated with climate change (increased temperature and 
severe drought), including cumulative effects. The impacts of these 
threats have and continue to impact the southern DPS of the western 
spadefoot across its range. Past habitat loss due to wetland and upland 
losses from urbanization and land conversion for agricultural purposes 
has occurred uniformly throughout the range of the DPS. The remaining 
areas where habitat remains and the DPS occurs are smaller in size and 
distribution, but still well distributed and often in clusters within 
dispersal distance of the DPS.
    In our analysis, we identified 7 regions having low-moderate and 1 
region having low, and 2 regions within unknown overall resiliency. The 
two regions with unknown resiliency (Baja Central and Baja South) as 
well as the region with low resiliency (Baja Northwest) occur in Baja 
California, Mexico. Information on the exact population distribution 
and habitat for these areas is mostly lacking and our assessment of the 
southern DPS in these areas is mostly limited to occurrence information 
and a review of the areas they are found. Recent survey information has 
identified numerous occurrence records that are well distributed 
throughout the DPS's range in Baja California and the limited review of 
habitat conditions associated with these records shows that the 
majority of records are in areas associated with grassland or shrub/
scrub habitat. Based on the best available information, we find that 
the habitat quantity and distribution within the Baja Northwest Region 
is high. Considering this and the recent occurrence records bolstering 
our knowledge of the distribution and occupancy of the DPS in these 3 
regions, we do not consider the biological condition of the DPS to 
differ from its condition elsewhere in its range. As a result, the best 
scientific and commercial information available do not indicate that 
the threats, or the DPS's response to the threats, are such that the 
southern DPS of the western spadefoot is currently in danger of 
extinction in the identified portions. Based on the discussion outlined 
above, we find that the DPS is not in danger of extinction now in the 3 
identified regions.
    Despite historical and current threats to the southern DPS of the 
western spadefoot, the southern DPS continues to maintain its 
distribution and extent throughout its range in the various ecological 
settings known for the DPS. In addition, many of these areas currently 
have substantial in-place and ongoing conservation and management to 
assist in protecting, conserving, and maintaining habitat availability, 
distribution, and quality for the southern DPS.
    As a result, we found no biologically meaningful portion of the 
southern DPS of the western spadefoot's range where threats are 
impacting individuals differently from how they are affecting the DPS 
elsewhere in its range, or where the biological condition of the DPS 
differs from its current condition elsewhere in its range such that the 
status of the DPS in that portion differs from any other portion of the 
DPS's range.
    Therefore, we find that the species is not in danger of extinction 
now in any significant portion of its range. This does not conflict 
with the courts' holdings in Desert Survivors v. U.S. Department of the 
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for 
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 
2017) because, in reaching this conclusion, we did not apply the 
aspects of the Final Policy, including the definition of 
``significant'' that those court decisions held to be invalid.

Southern DPS of the Western Spadefoot: Determination of Status

    Our review of the best scientific and commercial information 
available indicates that the southern DPS of the western spadefoot 
meets the definition of a threatened species. Therefore, we propose to 
list the southern DPS of the western spadefoot as a threatened species 
in accordance with sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of

[[Page 84271]]

recovery actions, requirements for Federal protection, and prohibitions 
against certain practices. Recognition through listing results in 
public awareness, and conservation by Federal, State, Tribal, and local 
agencies, private organizations, and individuals. The Act encourages 
cooperation with the States and other countries and calls for recovery 
actions to be carried out for listed species. The protection required 
by Federal agencies, including the Service, and the prohibitions 
against certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process consists of preparing draft and final 
recovery plans, beginning with the development of a recovery outline. 
However, because the western spadefoot has already been included in the 
Recovery Plan for Vernal Pool Ecosystems of California and Southern 
Oregon (Service 2005, entire), providing an outline and planning and 
drafting a plan is not necessary. The recovery plan uses an ecosystem 
approach on protecting and conserving vernal pool ecosystems and 
identifies goals, objectives, strategies, and criteria for conserving 
vernal pool species and their habitat and prioritizes certain tasks or 
measures in core areas and areas outside of those areas. The specific 
criteria for western spadefoot to be considered conserved is when 80 
percent of the occurrences of the species are protected and 85 percent 
of the habitat within 11 of 15 vernal pool regions where it occurs is 
also protected. In reviewing the criteria for western spadefoot 
conservation in the recovery plan (Service 2005, pp. III-87--III-112), 
we have determined that these criteria have not been met to date. The 
final recovery plan is available on our website (http://www.fws.gov/endangered), or from our Sacramento Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    As stated above, the western spadefoot has already been included in 
the Recovery Plan for Vernal Pool Ecosystems of California and Southern 
Oregon (Service 2005, entire) and conservation measures have been 
identified for the species and its habitat. As a result, funding for 
conservation actions will continue to be available for both the 
northern DPS and southern DPS of the western spadefoot from a variety 
of sources, including Federal budgets, State programs, and cost-share 
grants for non-Federal landowners, the academic community, and 
nongovernmental organizations. In addition, pursuant to section 6 of 
the Act, the State of California would be eligible for Federal funds to 
implement survey and monitoring actions for the western spadefoot and 
implement conservation actions identified in the State's Wildlife 
Action Plan funded through State Wildlife Grants for the western 
spadefoot as the species is considered a species of greatest 
conservation need by the State. Information on our grant programs that 
are available to aid species recovery can be found at: https://www.fws.gov/grants. We invite you to submit any new information on the 
northern DPS or southern DPS of the western spadefoot whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7 of the Act is titled Interagency Cooperation and mandates 
all Federal action agencies to use their existing authorities to 
further the conservation purposes of the Act and to ensure that their 
actions are not likely to jeopardize the continued existence of listed 
species or adversely modify critical habitat. Regulations implementing 
section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the Federal action is likely to result in 
jeopardy or adverse modification.
    In contrast, section 7(a)(4) of the Act requires Federal agencies 
to confer with the Service on any action which is likely to jeopardize 
the continued existence of any species proposed to be listed under the 
Act or result in the destruction or adverse modification of critical 
habitat proposed to be designated for such species. Although the 
conference procedures are required only when an action is likely to 
result in jeopardy or adverse modification, action agencies may 
voluntarily confer with the Service on actions that may affect species 
proposed for listing or critical habitat proposed to be designated. In 
the event that the subject species is listed or the relevant critical 
habitat is designated, a conference opinion may be adopted as a 
biological opinion and serve as compliance with section 7(a)(2).
    Examples of actions that may be subject to the conference and 
consultation procedures under section 7 processes are land management 
or other landscape-altering activities on Federal lands administered by 
the Bureau of Land Management, Department of Defense, U.S. Fish and 
Wildlife Service, U.S. Forest Service, and National Park Service as 
well as actions on State, Tribal, local, or private lands that require 
a Federal permit (such as a permit from the U.S. Army Corps of 
Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et 
seq.) or a permit from the Service under section 10 of the Act) or that 
involve some other Federal action (such as funding from the Federal 
Highway Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency). Federal actions not affecting listed 
species or critical habitat--and actions on State, Tribal, local, or 
private lands that are not federally funded, authorized, or carried out 
by a Federal agency--do not require section 7 consultation. Federal 
agencies should coordinate with the local Service Field Office (see FOR 
FURTHER INFORMATION

[[Page 84272]]

CONTACT) with any specific questions on section 7 consultation and 
conference requirements.
    It is the policy of the Services, as published in the Federal 
Register on July 1, 1994 (59 FR 34272), to identify to the extent known 
at the time a species is listed, specific activities that will not be 
considered likely to result in violation of section 9 of the Act. To 
the extent possible, activities that will be considered likely to 
result in violation will also be identified in as specific a manner as 
possible. The intent of this policy is to increase public awareness of 
the effect of a proposed listing on proposed and ongoing activities 
within the range of the species proposed for listing. Although most of 
the prohibitions in section 9 of the Act apply to endangered species, 
sections 9(a)(1)(G) and 9(a)(2)(E) of the Act prohibit the violation of 
any regulation under section 4(d) pertaining to any threatened species 
of fish or wildlife, or threatened species of plant, respectively. 
Section 4(d) of the Act directs the Secretary to promulgate protective 
regulations that are necessary and advisable for the conservation of 
threatened species. As a result, we interpret our policy to mean that, 
when we list a species as a threatened species, to the extent possible, 
we identify activities that will or will not be considered likely to 
result in violation of the protective regulations under section 4(d) 
for that species.
    At this time, we are unable to identify specific activities that 
will or will not be considered likely to result in violation of section 
9 of the Act beyond what is already clear from the descriptions of 
prohibitions and exceptions established by protective regulation under 
section 4(d) of the Act.
    Questions regarding whether specific activities would constitute 
violation of section 9 of the Act should be directed to the Sacramento 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

II. Proposed Rule Issued Under Section 4(d) of the Act for the Northern 
DPS and Southern DPS of the Western Spadefoot

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened species. The U.S. Supreme Court has noted that 
statutory language similar to the language in section 4(d) of the Act 
authorizing the Secretary to take action that she ``deems necessary and 
advisable'' affords a large degree of deference to the agency (see 
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in 
the Act to mean the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to the Act are no longer 
necessary. Additionally, the second sentence of section 4(d) of the Act 
states that the Secretary may by regulation prohibit with respect to 
any threatened species any act prohibited under section 9(a)(1), in the 
case of fish or wildlife, or section 9(a)(2), in the case of plants. 
Thus, the combination of the two sentences of section 4(d) provides the 
Secretary with wide latitude of discretion to select and promulgate 
appropriate regulations tailored to the specific conservation needs of 
the threatened species. The second sentence grants particularly broad 
discretion to the Service when adopting one or more of the prohibitions 
under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld, as a valid 
exercise of agency authority, rules developed under section 4(d) that 
included limited prohibitions against takings (see Alsea Valley 
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, 2002 WL 
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do 
not address all of the threats a species faces (see State of Louisiana 
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative 
history when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to [her] with regard to the permitted activities for those 
species. [She] may, for example, permit taking, but not importation of 
such species, or [she] may choose to forbid both taking and importation 
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    The provisions of this proposed 4(d) rule would promote 
conservation of the northern DPS and southern DPS of the western 
spadefoot by encouraging management of the habitat for the DPSs in ways 
that would facilitate their conservation. The provisions of this 
proposed rule are one of many tools that we would use to promote the 
conservation of the northern DPS and southern DPS of the western 
spadefoot. This proposed 4(d) rule would apply only if and when we make 
final the listing of the northern DPS and southern DPS of the western 
spadefoot as threatened DPSs.
    As mentioned previously in Available Conservation Measures, section 
7(a)(2) of the Act requires Federal agencies, including the Service, to 
ensure that any action they fund, authorize, or carry out is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of designated critical habitat of such species. In addition, even 
before the listing of any species or the designation of its critical 
habitat is finalized, section 7(a)(4) of the Act requires Federal 
agencies to confer with the Service on any agency action which is 
likely to jeopardize the continued existence of any species proposed to 
be listed under the Act or result in the destruction or adverse 
modification of critical habitat proposed to be designated for such 
species.
    These requirements are the same for a threatened species with a 
species-specific 4(d) rule. For example, as with an endangered species, 
if a Federal agency determines that an action is ``not likely to 
adversely affect'' a threatened species, it will require the Service's 
written concurrence (50 CFR 402.13(c)). Similarly, if a Federal agency 
determinates that an action is ``likely to adversely affect'' a 
threatened species, the action will require formal consultation with 
the Service and the formulation of a biological opinion (50 CFR 
402.14(a)).

Provisions of the Proposed 4(d) Rule for the Northern DPS and Southern 
DPS of the Western Spadefoot

    Exercising the Secretary's authority under section 4(d) of the Act, 
we have developed a proposed rule that is designed to address the 
northern DPS and southern DPS of the western spadefoot's conservation 
needs. As discussed previously in Summary of Biological Status and 
Threats, we have concluded that the two DPSs are likely to become in 
danger of extinction within the foreseeable future primarily due to 
impacts to habitat and the effects of climate change. Section 4(d) 
requires the Secretary to issue such regulations as she deems necessary 
and advisable to provide for the conservation of each threatened 
species and authorizes the Secretary to include among those protective 
regulations any of the prohibitions that section 9(a)(1) of the Act 
prescribes for endangered species. We find that, if finalized, the 
protections, prohibitions, and

[[Page 84273]]

exceptions in this proposed rule as a whole satisfy the requirement in 
section 4(d) of the Act to issue regulations deemed necessary and 
advisable to provide for the conservation of the northern DPS and 
southern DPS of the western spadefoot.
    The protective regulations we are proposing for the northern DPS 
and southern DPS of the western spadefoot incorporate prohibitions from 
section 9(a)(1) of the Act to address the threats to the two DPSs. 
Section 9(a)(1) prohibits the following activities for endangered 
wildlife: importing or exporting; take; possession and other acts with 
unlawfully taken specimens; delivering, receiving, carrying, 
transporting, or shipping in interstate or foreign commerce in the 
course of commercial activity; or selling or offering for sale in 
interstate or foreign commerce. This protective regulation includes all 
these prohibitions because the northern DPS and southern DPS of the 
western spadefoot are at risk of extinction in the foreseeable future 
and putting these prohibitions in place will help to prevent further 
declines, preserve the two DPS's remaining populations, slow their rate 
of decline, and decrease the cumulative negative effects from other 
ongoing or future threats.
    In particular, this proposed 4(d) rule would provide for the 
conservation of the northern DPS and southern DPS of the western 
spadefoot by prohibiting the following activities, unless they fall 
within specific exceptions or are otherwise authorized or permitted: 
importing or exporting; take; possession and other acts with unlawfully 
taken specimens; delivering, receiving, carrying, transporting, or 
shipping in interstate or foreign commerce in the course of commercial 
activity; or selling or offering for sale in interstate or foreign 
commerce.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Regulating 
take would help preserve the DPS's remaining populations, slow their 
rate of decline, and decrease cumulative effects from other ongoing or 
future threats. Therefore, we propose to prohibit take of the northern 
DPS and southern DPS of the western spadefoot, except for take 
resulting from those actions and activities specifically excepted by 
the 4(d) rule.
    Exceptions to the prohibition on take would include all the general 
exceptions to the prohibition on take of endangered wildlife as set 
forth in 50 CFR 17.21 and additional exceptions, as described below.
    The proposed 4(d) rule would also provide for the conservation of 
the northern DPS and southern DPS of the western spadefoot by allowing 
exceptions that incentivize conservation actions or that, while they 
may have some minimal level of take of the two DPSs, are not expected 
to rise to the level that would have a negative impact (i.e., would 
have only de minimis impacts) on either of the DPS's conservation. The 
proposed exceptions to these prohibitions include (1) activities 
associated with routine livestock ranching on private lands that 
provide and maintain breeding and upland habitats and maintain stock 
ponds; (2) implementation of livestock grazing as a tool in the course 
of vegetation management and to benefit the northern DPS or southern 
DPS of the western spadefoot in vernal pool landscapes; (3) landowner 
actions to maintain the minimum clearance of vegetation (defensible 
space) requirement of 100 feet (30 meters) from any occupied dwelling, 
occupied structure, or to the property line, whichever is nearer, to 
provide reasonable fire safety and to reduce wildfire risks to breeding 
and upland habitats of the western spadefoot and consistent with the 
State of California fire codes or local fire codes/ordinances; and (4) 
wildfire management actions (e.g., prescribed burns, hazardous fuel 
reduction activities, and maintenance of fuel breaks) to maintain, 
protect, or enhance habitat occupied by the northern DPS or southern 
DPS of the western spadefoot. These exceptions as discussed below are 
expected to have negligible or beneficial impacts to the northern DPS 
and southern DPS of the western spadefoot and its habitat.
    Routine livestock ranching activities, such as those conducted in 
California's lower elevation foothill regions within the range of the 
northern DPS or southern DPS of the western spadefoot provide a 
substantial conservation benefit to the two DPSs. The conservation 
benefits provided by routine ranching activities include the 
establishment and maintenance of stock ponds that are often aquatic 
habitat for breeding and rearing of western spadefoot larvae and 
juveniles. The grazing of uplands by these ranching operations 
maintains grass and shrubland habitat from becoming overgrown and 
assists in adult western spadefoot's establishment of burrows, provides 
access to better foraging opportunities, and allows for better movement 
and dispersal. Grazing operations not following standard best 
management practices for rangeland grazing practices to avoid 
overgrazing would not be part of this exception. By providing this 
exception, we are assisting in maintaining these ranching activities 
(and their benefits to the northern and southern DPSs of the western 
spadefoot) and avoiding potential conversion of these lands to 
incompatible uses such as urban development or agriculture.
    Implementing livestock grazing as a management tool to reduce 
nonnative annual vegetation in areas associated with vernal pools 
assists in maintaining the aquatic habitat and provides breeding and 
rearing opportunities to the northern DPS and southern DPS of the 
western spadefoot. Nonnative annual vegetation or overabundance of 
vegetation can degrade vernal pool habitat by intrusion into the ponded 
areas or cause shortening of the hydroperiod of the pools. Small 
remnant vernal pool areas used by the two DPSs are usually degraded or 
altered and may have a shortened inundation period or provide limited 
upland habitat, thereby not providing for the needs of the two DPSs. 
Removal and maintenance of excessive vegetation may assist these 
smaller vernal pool areas to continue to be productive and be used as 
breeding habitat for the two DPSs.
    In certain areas the use of fire and wildfire management such as 
prescribed burns, fuel reduction activities, and maintenance of fuel 
breaks (does not include use of heavy equipment such as bulldozers, 
backhoes, or tractors) may assist in protecting and maintaining habitat 
for the northern DPS or southern DPS of the western spadefoot. Similar 
to livestock grazing, prescribed fire actions and fuel reduction 
activities (vegetation removal), conducted outside the species' active 
period, remove excessive vegetation and allow for maintenance of ponded 
habitat and better access for the two DPSs to upland areas.
    Establishing and maintaining required minimum vegetation clearance 
from dwellings or structures to reduce wildland fire risks to human 
life and property may assist in protecting and maintaining habitat for 
the northern DPS and southern DPS of the western spadefoot. This 
process includes activities necessary to maintain the minimum clearance 
(defensible space) requirement from any occupied dwelling, occupied 
structure, or to the property line, whichever is nearer, to provide 
reasonable fire safety and to

[[Page 84274]]

reduce wildfire risks consistent with the State of California fire 
codes or local fire codes/ordinances.
    We find that the actions discussed above, taken by management 
entities in the range of the northern DPS and southern DPS of the 
western spadefoot for the purpose of reducing the risk or severity of 
habitat degradation and designed to maintain or restore open habitat 
for the species, will further the goal of reducing the likelihood of 
the two DPSs from becoming endangered species and will also continue to 
contribute to their conservation and long-term viability. We therefore 
establish that the prohibitions under section 4(d) of the Act for the 
protection of these two DPSs do not apply to such actions.
    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise-prohibited activities, including those described above. The 
regulations that govern permits for threatened wildlife state that the 
Director may issue a permit authorizing any activity otherwise 
prohibited with regard to threatened species including permits issued 
for scientific purposes, to enhance propagation or survival, for 
economic hardship, for zoological exhibition, for educational purposes, 
for incidental taking, or for special purposes consistent with the 
purposes of the Act (50 CFR 17.32). The statute also contains certain 
exemptions from the prohibitions, which are found in sections 9 and 10 
of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we must cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, any qualified employee or agent of a 
State conservation agency that is a party to a cooperative agreement 
with us in accordance with section 6(c) of the Act, who is designated 
by his or her agency for such purposes, would, without additional 
authorization, be able to conduct activities that are designed to 
conserve the northern DPS or southern DPS of the western spadefoot and 
that may result in otherwise prohibited take.
    Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or our ability to 
enter into partnerships for the management and protection of the 
northern DPS or southern DPS of the western spadefoot. However, 
interagency cooperation may be further streamlined through planned 
programmatic consultations for the species between us and other Federal 
agencies, where appropriate. We ask the public, particularly State 
agencies and other interested stakeholders that may be affected by the 
proposed 4(d) rule, to provide comments and suggestions regarding 
additional guidance and methods that we could provide or use, 
respectively, to streamline the implementation of this proposed 4(d) 
rule (see Information Requested, above).

III. Critical Habitat for the Northern DPS and Southern DPS of the 
Western Spadefoot

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that each Federal action agency ensure, in 
consultation with the Service, that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification of designated critical habitat. The designation of 
critical habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation also does not allow the government or public to access 
private lands. Such designation does not require implementation of 
restoration, recovery, or enhancement measures by non-Federal 
landowners. Rather, designation requires that, where a landowner 
requests Federal agency funding or authorization for an action that may 
affect an area designated as critical habitat, the Federal agency 
consult with the Service under section 7(a)(2) of the Act. If the 
action may affect the listed species itself (such as for occupied 
critical habitat), the Federal agency would have already been required 
to consult with the Service even absent the designation because of the 
requirement to ensure that the action is not likely to jeopardize the 
continued existence of the species. Even if the Service were to 
conclude after consultation that the proposed activity is likely to 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the

[[Page 84275]]

extent known using the best scientific data available, those physical 
or biological features that are essential to the conservation of the 
species (such as space, food, cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in the proposed 4(d) rule. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of the species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of those planning efforts calls for a 
different outcome.

Critical Habitat Determinability

    Our regulations at 50 CFR 424.12(a)(2) state that critical habitat 
is not determinable when one or both of the following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    We reviewed the available information pertaining to the biological 
needs of the northern DPS and southern DPS of the western spadefoot and 
habitat characteristics where the two DPSs are located. A careful 
assessment of the economic impacts that may occur due to a critical 
habitat designation is still ongoing, and we are in the process of 
working with our Federal partners, Tribes, and State and other partners 
in acquiring the complex information needed to perform that assessment. 
Therefore, due to the current lack of data sufficient to perform 
required analyses, we conclude that the designation of critical habitat 
for the northern DPS and southern DPS of the western spadefoot is not 
determinable at this time. The Act allows the Service an additional 
year to publish a critical habitat designation that is not determinable 
at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) 
rule)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination 
with Indian Tribal Governments), and the Department of the Interior's 
manual at 512 DM 2, we readily acknowledge our responsibility to 
communicate meaningfully with federally recognized Tribes on a 
government-to-government

[[Page 84276]]

basis. In accordance with Secretaries' Order 3206 of June 5, 1997 
(American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act), we readily acknowledge our 
responsibilities to work directly with Tribes in developing programs 
for healthy ecosystems, to acknowledge that Tribal lands are not 
subject to the same controls as Federal public lands, to remain 
sensitive to Indian culture, and to make information available to 
Tribes. We contacted all federally recognized Tribes in the range of 
the western spadefoot during the initiation of our SSA development 
process and had coordination meetings with several Tribes on the timing 
and opportunities for input into our listing process. We will continue 
to work with Tribal entities during the development of a final listing 
rule and for the designation of critical habitat for the northern DPS 
and southern DPS of the western spadefoot.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the 
Carlsbad, Sacramento, and Ventura Fish and Wildlife Offices.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    <ls-thn-eq>Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-
4245, unless otherwise noted.
0
2. In Sec.  17.11, amend paragraph (h) by adding an entry for 
``Spadefoot, Western [Northern DPS]'' and ``Spadefoot, Western 
[Southern DPS]'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under AMPHIBIANS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                   Amphibians
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Spadefoot, Western [Northern      Spea hammondii....  U.S.A. (northern    T............  [Federal Register
 DPS].                                                 CA).                               citation when
                                                                                          published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.43(i); \4d\
Spadefoot, Western [Southern      Spea hammondii....  U.S.A. (southern    T............  [Federal Register
 DPS].                                                 CA), Mexico (Baja                  citation when
                                                       California).                       published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.43(i); \4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.43 by adding paragraph (i) to read as follows:


Sec.  17.43  Special rules--amphibians.

* * * * *
    (i) Western spadefoot (Spea hammondii), northern distinct 
population segment (DPS) and Western spadefoot (Spea hammondii), 
southern DPS.
    (1) Location. The northern DPS and southern DPS of the western 
spadefoot are shown on the map that follows:

Figure 1 to Paragraph (i)(1)

BILLING CODE 4333-15-P

[[Page 84277]]

[GRAPHIC] [TIFF OMITTED] TP05DE23.032

BILLING CODE 4333-15-C
    (2) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to the northern DPS of the western 
spadefoot and southern DPS of the western spadefoot. Except as provided 
under paragraph (i)(3) of this section and Sec. Sec.  17.4 and 17.5, it 
is unlawful for any person subject to the jurisdiction of the United 
States to commit, to attempt to commit, to solicit another to commit, 
or cause to be committed, any of the following acts in regard to these 
DPSs:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of a commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (3) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (4) for 
endangered wildlife.
    (iii) Take as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.
    (v) Take incidental to an otherwise lawful activity caused by:
    (A) Activities associated with routine livestock ranching on 
private lands that provide and maintain breeding and upland habitats 
and maintain stock ponds.
    (B) Implementation of livestock grazing as a tool in the course of 
vegetation management and to benefit the northern DPS and southern DPS 
of the western spadefoot in vernal pool landscapes.
    (C) Landowner actions to maintain the minimum clearance of 
vegetation (defensible space) requirement of 100 feet (30 meters) from 
any occupied dwelling, occupied structure, or to the property line, 
whichever is nearer, to provide reasonable fire safety and to

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reduce wildfire risks to breeding and upland habitats of the northern 
DPS and southern DPS of the western spadefoot and consistent with the 
State of California fire codes or local fire codes/ordinances.
    (D) Fire management actions (e.g., prescribed burns, hazardous fuel 
reduction activities, and maintenance of fuel breaks) to maintain, 
protect, or enhance habitat occupied by the northern DPS and southern 
DPS of the western spadefoot.
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-26579 Filed 12-4-23; 8:45 am]
BILLING CODE 4333-15-P